8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): December 3, 2002

DIVERSA CORPORATION

(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction of incorporation)

000-29173	22-3297375
(Commission File No.)	(IRS Employer Identification No.)

4955 Directors Place

San Diego, California 92121

(Address of principal executive offices and zip code)

Registrant’s telephone number, including area code: (858) 526-5000

Item 5. Other Events.

On December 3, 2002, Diversa Corporation, a Delaware corporation (“Diversa”) entered into a series of agreements with Syngenta Participations AG, a corporation organized under the laws of Switzerland (“Syngenta”), and Torrey Mesa Research Institute, a Delaware corporation and an indirect, wholly-owned subsidiary of Syngenta (“TMRI”). These agreements provide that Diversa will, among other actions:

• collaborate with Syngenta to enhance the biotechnology research platform developed at TMRI and to discover and develop products for plant science applications, including plant traits and products for the food, animal feed and natural fiber markets, as well as antibody and biopharma products under projects to be agreed to between Diversa and Syngenta;

• acquire licenses from Syngenta to intellectual property rights used in activities conducted at TMRI that primarily involve tools, technologies and methods relating to proteomics, metabolomics, RNA dynamics, and bioinformatics and methods to analyze and link these components of genomics or that primarily relate to TMRI’s fungal program, for use outside of Syngenta’s exclusive field as defined in the Research Collaboration Agreement entered into between Diversa and Syngenta; and

• purchase certain assets of Syngenta and TMRI relating to TMRI’s research activities and assume certain miscellaneous liabilities under equipment maintenance contracts.

In connection with the foregoing, Diversa intends to issue to Syngenta or its affiliates shares of its common stock that will represent 14% of its outstanding common stock as of the time it consummates its proposed transactions with Syngenta and TMRI, and a warrant to purchase additional shares of its common stock at an initial exercise price of $22 per share that will represent 3% of its outstanding common stock as of that time, in each case after giving effect to those issuances and assuming the full exercise of the warrant. Diversa also intends to hire a significant number of TMRI employees, effective as of the consummation of its proposed transactions with Syngenta and TMRI. Diversa expects that it will use the licenses described above that it intends to acquire from Syngenta primarily in the pharmaceutical field.

The common stock and the warrant, and the shares of Diversa’s common stock issuable upon exercise of the warrant, that Diversa intends to issue in connection with its proposed transactions with Syngenta and TMRI will be restricted securities for purposes of federal securities laws. Diversa has agreed to provide Syngenta and its affiliates with certain registration rights for those shares under certain circumstances.

Consummation of Diversa’s proposed transactions with Syngenta and TMRI is subject to a number of conditions, including that Diversa’s stockholders approve the issuances by Diversa of its common stock and the warrant to Syngenta or its affiliates that are referred to above, the expiration of the Hart-Scott-Rodino waiting period, and certain other customary conditions.

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Certain of Diversa’s major investors as well as certain of its directors and executive officers entered into a Stockholders Agreement with Syngenta and TMRI pursuant to which they agreed to vote all of the shares of Diversa’s common stock held by them in favor of the issuance of common stock and the warrant to Syngenta or its affiliates for which Diversa will be seeking stockholder approval. Diversa’s stockholders that are parties to the Stockholders Agreement collectively held approximately 27.4% of its outstanding common stock on December 3, 2002.

The foregoing summary of Diversa’s proposed transactions with Syngenta and TMRI is a general description of certain terms contained in the related Transaction Agreement, Research Collaboration Agreement and Intellectual Property Rights License and is qualified in its entirety by reference to those agreements, copies of which are filed as Exhibits 2.1, 10.46 and 10.47 hereto and are incorporated herein by reference. The Research Collaboration Agreement that we entered into with Syngenta on December 3, 2002 was amended and restated by the parties on January 3, 2003. The descriptions of the warrant that Diversa intends to issue to Syngenta or its affiliates in connection with its proposed transactions with Syngenta and TMRI and the registration rights that Diversa intends to provide Syngenta and its affiliates are also general descriptions of certain terms contained in the related warrant and Registration Rights Agreement and are qualified in their entirety by reference to the related warrant and Registration Rights Agreement, copies of which are filed as Exhibits 4.5 and 4.6 hereto and are incorporated by reference. In addition, the Stockholders Agreement is filed hereto as Exhibit 2.2 and is incorporated by reference herein.

Forward-Looking Statements

This Current Report on Form 8-K contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 about Diversa. These include statements related to: Diversa’s and Syngenta’s consummation of the proposed transactions among them and TMRI; the ability of Diversa’s and Syngenta’s collaboration and the proposed transactions among them and TMRI to enhance the biotechnology research platform developed at TMRI and to discover and develop products for plant science applications, as well as antibody and biopharma products; the ability of Diversa’s and Syngenta’s collaboration and the proposed transactions among them and TMRI, including Diversa’s acquisition of certain licenses from Syngenta, to accelerate product development and advance Diversa’s pharmaceutical program; the ability of Diversa to hire a significant number of TMRI employees in connection with its proposed transactions with Syngenta and TMRI; Diversa’s expected uses for the licenses that it intends to acquire from Syngenta in connection with its proposed transactions with Syngenta and TMRI; whether Diversa will be able to obtain stockholder approval for its issuance of common stock and the warrant to Syngenta or its affiliates in connection with its proposed transactions with Syngenta and TMRI; and generally the ability of Diversa and Syngenta to realize the expected benefits of the collaboration and proposed transactions among them and TMRI, all of which are prospective. Such statements are only predictions, and the actual events or results may differ materially from those projected in such forward-looking statements. Factors that could cause or contribute to differences include, but are not limited to: risks involved with either Diversa or Syngenta failing to satisfy the closing conditions for the proposed transactions among them and TMRI; either Diversa or Syngenta failing to devote adequate resources to the collaboration between them; Diversa’s and Syngenta’s new and uncertain technologies and the utility of these technologies to enable the collaboration to discover, develop and successfully commercialize products; the collaboration’s dependence on

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patents and proprietary rights; Diversa’s and Syngenta’s protection and enforcement of their patents and proprietary rights; the development or availability of competitive products or technologies; and Diversa’s failure to attract and retain a significant number of TMRI employees. Certain of the foregoing factors and others are more fully described in Diversa’s filings with the Securities and Exchange Commission, including, but not limited to, Diversa’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002. These forward-looking statements speak only as of the date hereof. Diversa expressly disclaims any intent or obligation to update these forward-looking statements.

Item 7.	Exhibits.
	2.1	Transaction Agreement dated as of December 3, 2002 among Syngenta Participations AG, Torrey Mesa Research Institute and Diversa Corporation
	2.2	Stockholders Agreement dated as of December 3, 2002 among Syngenta Participations AG, Torrey Mesa Research Institute, Healthcare Ventures III, L.P., Healthcare Ventures IV, L.P., Healthcare Ventures V, L.P., Healthcare Ventures VI, L.P., Rho Management Trust II, Rho Management Partners L.P., Jay M. Short, Ph.D., Melvin I. Simon, Ph.D., Donald D. Johnston, Wayne T. Hockmeyer, Ph.D., Peter Johnson, William H. Baum, Karin Eastham, R. Patrick Simms and Carolyn A. Erickson
	4.5	Form of warrant to be issued by Diversa Corporation to Syngenta Participations AG or its affiliates upon consummation of the proposed transactions among Diversa Corporation, Syngenta Participations AG and Torrey Mesa Research Institute
	4.6	Registration Rights Agreement dated as of December 3, 2002 among Syngenta Participations AG, Torrey Mesa Research Institute, Syngenta Seeds AG and Diversa Corporation
	10.46	Amended and Restated Research Collaboration Agreement dated as of January 3, 2003 between Diversa Corporation and Syngenta Participations AG*
	10.47	Intellectual Property Rights License dated as of December 3, 2002 between Diversa Corporation and Syngenta Participations AG

* Confidential treatment has been requested with respect to portions of this exhibit. A complete copy of the exhibit, including the redacted terms, has been separately filed with the Securities and Exchange Commission.

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	DIVERSA CORPORATION
Dated: January 6, 2003	By:	/s/ Karin Eastham
		Name:    Karin Eastham Title:      Senior Vice President, Finance, Chief Financial Officer and Secretary

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INDEX TO EXHIBITS

2.1	Transaction Agreement dated as of December 3, 2002 among Syngenta Participations AG, Torrey Mesa Research Institute and Diversa Corporation
2.2	Stockholders Agreement dated as of December 3, 2002 among Syngenta Participations AG, Torrey Mesa Research Institute, Healthcare Ventures III, L.P., Healthcare Ventures IV, L.P., Healthcare Ventures V, L.P., Healthcare Ventures VI, L.P., Rho Management Trust II, Rho Management Partners L.P., Jay M. Short, Ph.D., Melvin I. Simon, Ph.D., Donald D. Johnston, Wayne T. Hockmeyer, Ph.D., Peter Johnson, William H. Baum, Karin Eastham, R. Patrick Simms and Carolyn A. Erickson
4.5	Form of warrant to be issued by Diversa Corporation to Syngenta Participations AG or its affiliates upon consummation of the proposed transactions among Diversa Corporation, Syngenta Participations AG and Torrey Mesa Research Institute
4.6	Registration Rights Agreement dated as of December 3, 2002 among Syngenta Participations AG, Torrey Mesa Research Institute, Syngenta Seeds AG and Diversa Corporation
10.46	Amended and Restated Research Collaboration Agreement dated as of January 3, 2003 between Diversa Corporation and Syngenta Participations AG*
10.47	Intellectual Property Rights License dated as of December 3, 2002 between Diversa Corporation and Syngenta Participations AG

* Confidential treatment has been requested with respect to portions of this exhibit. A complete copy of the exhibit, including the redacted terms, has been separately filed with the Securities and Exchange Commission.

EX-2.1

Exhibit 2.1

TRANSACTION AGREEMENT

dated as of

December 3, 2002

among

SYNGENTA PARTICIPATIONS AG,

TORREY MESA RESEARCH INSTITUTE

and

DIVERSA CORPORATION

TABLE OF CONTENTS

	PAGE
ARTICLE 1 DEFINITIONS
Section 1.01.  Definitions	2
ARTICLE 2 PURCHASE AND SALE
Section 2.01.  Purchase and Sale	7
Section 2.02.  Excluded Assets	8
Section 2.03.  Assumed Liabilities	9
Section 2.04.  Excluded Liabilities	9
Section 2.05.  Assignment of Contracts and Rights	9
Section 2.06.  Purchase Price; Allocation of Purchase Price	10
Section 2.07.  Closing	12
Section 2.08.  Post-Closing True-Up as to Shares and Warrant	13
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE SYNGENTA PARTIES
Section 3.01.  Corporate Existence and Power	14
Section 3.02.  Corporate Authorization	14
Section 3.03.  Governmental Authorization	14
Section 3.04.  Noncontravention	15
Section 3.05.  Required Consents	15
Section 3.06.  Contracts	15
Section 3.07.  Litigation	15
Section 3.08.  Court Orders	16
Section 3.09.  Properties	16
Section 3.10.  Intellectual Property	17
Section 3.11.  Employees	18
Section 3.12.  Tax Matters	19
Section 3.13.  Securities Matters	19
Section 3.14.  Finders’ Fees	20
Section 3.15.  Information Provided by Syngenta	20
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF DIVERSA
Section 4.01.  Corporate Existence and Power	21
Section 4.02.  Corporate Authorization	21
Section 4.03.  Governmental Authorization	21
Section 4.04.  Noncontravention	22

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Section 4.05.  Rights Plan	22
Section 4.06.  Capitalization	23
Section 4.07.  Valid Issuance	23
Section 4.08.  SEC Filings; Financial Statements	24
Section 4.09.  Diversa Proxy Materials	24
Section 4.10.  Absence of Certain Changes	25
Section 4.11.  No Undisclosed Material Liabilities	25
Section 4.12.  Litigation	25
Section 4.13.  Compliance with Laws and Court Orders	25
Section 4.14.  Tax Matters	26
Section 4.15.  Finders’ Fees	26
ARTICLE 5 COVENANTS OF THE SYNGENTA PARTIES
Section 5.01.  Conduct of TMRI	27
Section 5.02.  Nonsolicitation	27
Section 5.03.  Syngenta Agreement to Vote	27
Section 5.04.  Non-assertion of Certain Intellectual Property Rights	28
ARTICLE 6 COVENANTS OF DIVERSA
Section 6.01.  Conduct of Business	28
Section 6.02.  Stockholder Meeting; Obtaining Stockholder Approval	29
Section 6.03.  Nasdaq Listing	30
Section 6.04.  Removal of Legends	30
Section 6.05.  Nonsolicitation	30
Section 6.06.  Trademarks and Tradenames	30
Section 6.07.  Office Space	30
ARTICLE 7 COVENANTS OF DIVERSA AND THE SYNGENTA PARTIES
Section 7.01.  Reasonable Efforts; Further Assurance	31
Section 7.02.  Diversa Pre-Closing Access to Information	33
Section 7.03.  Syngenta Pre-Closing Access to Information	33
Section 7.04.  Mutual Post-Closing Access to Information	33
Section 7.05.  Confidentiality	34
Section 7.06.  Novartis Stock Purchase Agreement	34
Section 7.07.  Certain Filings	34
Section 7.08.  Public Announcements	35
Section 7.09.  Notices of Certain Events	35

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ARTICLE 8 TAX MATTERS
Section 8.01.  Tax Cooperation; Allocation of Taxes	35
ARTICLE 9 EMPLOYEE BENEFITS
Section 9.01.  Employees and Offers of Employment	37
Section 9.02.  Employee Benefits Generally	38
Section 9.03.  Syngenta Parties’ Employee Benefit Plans	38
Section 9.04.  Diversa Benefit Plans	39
Section 9.05.  Certain Transferred Employees	40
Section 9.06.  Certain Liabilities	40
Section 9.07.  No Third Party Beneficiaries	40
ARTICLE 10 CONDITIONS TO CLOSING
Section 10.01.  Conditions to Obligations of Diversa and Syngenta	41
Section 10.02.  Conditions to Obligation of Diversa	41
Section 10.03.  Conditions to Obligation of the Syngenta Parties	42
ARTICLE 11 SURVIVAL; INDEMNIFICATION
Section 11.01.  Survival	42
Section 11.02.  Indemnification	43
Section 11.03.  Procedures	44
Section 11.04.  Calculation of Damages	45
Section 11.05.  Assignment of Claims	45
Section 11.06.  Right of Set-Off	46
Section 11.07.  Exclusivity	46
ARTICLE 12 TERMINATION
Section 12.01.  Grounds for Termination	46
Section 12.02.  Effect of Termination	47
ARTICLE 13 MISCELLANEOUS
Section 13.01.  Notices	48
Section 13.02.  Amendments and Waivers	49
Section 13.03.  Expenses	49
Section 13.04.  Successors and Assigns	49
Section 13.05.  Governing Law	50

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Section 13.06.  Jurisdiction	50
Section 13.07.  WAIVER OF JURY TRIAL	50
Section 13.08.  Counterparts; Third Party Beneficiaries	50
Section 13.09.  Entire Agreement	50
Section 13.10.  Bulk Sales Laws	51
Section 13.11.  Captions	51
Section 13.12.  Interpretation	51
EXHIBIT A Form of Warrant
EXHIBIT B Assignment and Assumption Agreement

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TRANSACTION AGREEMENT

AGREEMENT dated as of December 3, 2002 among Syngenta Participations AG, a corporation organized under the laws of Switzerland (“SPARTAG”), Torrey Mesa Research Institute, a Delaware corporation (“TMRI”, and together with SPARTAG, the “Syngenta Parties”) and Diversa Corporation, a Delaware corporation (“Diversa”),

W I T N E S S E T H :

WHEREAS, Diversa has a business based on gene diversity, gene enhancement, and chemical, industrial, agricultural and pharmaceutical applications;

WHEREAS, the Syngenta Parties conduct through TMRI certain research activities using a significant whole organism, systems biology based research capability incorporating gene sequencing and analysis, proteomics, metabolomics, RNA dynamics and bioinformatics software;

WHEREAS, the Syngenta Parties own or have licenses to all of the intellectual property rights used to conduct the Research Activities;

WHEREAS, (i) Diversa desires to acquire from the Syngenta Parties licenses to certain intellectual property rights used to conduct the Research Activities, and the Syngenta Parties desire to grant such licenses to Diversa, (ii) Diversa desires to purchase certain assets used to conduct the Research Activities from the Syngenta Parties, and assume certain liabilities related to the Research Activities or the Purchased Assets from the Syngenta Parties, and the Syngenta Parties desire to sell such assets and transfer such liabilities to Diversa, and (iii) the parties desire to enter into certain other arrangements to further develop applications for genetic technologies, in each case upon the terms and subject to the conditions hereinafter set forth and in the other Transaction Documents (as defined herein);

WHEREAS, as a condition and inducement to the Syngenta Parties’ willingness to enter into this Agreement, Diversa has requested that the Designated Diversa Stockholders (as defined herein) enter into (and such stockholders have entered into), as of the date hereof, a Stockholders Agreement with the Syngenta Parties pursuant to which, among other things, such stockholders have agreed to vote all shares of Diversa Common Stock held by them in favor of the issuance of the Shares, the Warrant and the Warrant Shares (each as defined herein) as contemplated by this Agreement;

The parties hereto agree as follows:

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ARTICLE 1

DEFINITIONS

Section 1.01. Definitions.

(a)  The following terms, as used herein, have the following meanings:

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person.

“Board of Directors” means the board of directors of Diversa.

“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York are authorized by law to close.

“Closing Date” means the date of the Closing.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collaboration Agreement” means that certain Collaboration Agreement dated as of the date hereof between Diversa and SPARTAG.

“Copyright” means any registered or unregistered copyright in both published and unpublished works, any rights in mask work and any application for any of the foregoing.

“Damages” means any damage, loss, liability, cost, settlement, judgment, award, fine, penalty or expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any Proceeding, whether involving a third party claim or a claim solely between Diversa and the Syngenta Parties).

“Delaware Law” means the General Corporation Law of the State of Delaware.

“Designated Diversa Stockholders” means (i) HealthCare Ventures III, L.P., HealthCare Ventures IV, L.P., HealthCare Ventures V, L.P. and HealthCare Ventures VI, L.P., (ii) Rho Management Trust II and Rho Management Partners L.P. and (iii) Jay M. Short, Ph.D., Melvin I. Simon, Ph.D., Donald D. Johnston, Wayne T. Hockmeyer, Ph.D., Peter Johnson, William H. Baum, Karin Eastham, R. Patrick Simms and Carolyn A. Erickson.

“Diversa Balance Sheet” means the consolidated balance sheet of Diversa as of June 30, 2002 and the footnotes, if any, therein set forth in the Diversa 10-Q.

“Diversa Balance Sheet Date” means December 31, 2001.

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“Diversa Common Stock” means the common stock, par value $0.001 per share, of Diversa.

“Diversa 10-Q” means Diversa’s quarterly report on Form 10-Q for the quarter ended June 30, 2002.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended and the rules and regulations promulgated thereunder.

“Governmental Authorization” means any permit, license, approval or other authorization issued or granted by or under the authority of any Governmental Body.

“Governmental Body” means any federal, state, local or foreign governmental, quasi-governmental or regulatory body, agency or authority (including any court or tribunal).

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Intellectual Property Licenses” means the licenses to certain TMRI Intellectual Property Rights granted pursuant to the Intellectual Property License Agreement.

“Intellectual Property License Agreement” means that certain Intellectual Property License Agreement dated as of the date hereof between Diversa and SPARTAG.

“Intellectual Property Right” means any Trademark, service mark, trade name, mask work, invention, Patent, trade secret, Copyright, know-how (including any registrations or applications for registration of any of the foregoing), invention, design, process or any other similar type of proprietary intellectual property right.

“Knowledge of Diversa,” “Diversa’s Knowledge” or any other similar knowledge qualification in this Agreement means to the actual knowledge of Jay M. Short, Ph.D., William H. Baum, Karin Eastham, Martin Sabarsky and Carolyn A. Erickson after reasonable inquiry of those responsible for the area in question.

“Knowledge of Syngenta,” “Syngenta’s Knowledge” or any other similar knowledge qualification in this Agreement means to the actual knowledge of Adrian C. Dubock, Elizabeth K. Quarles, David Lawrence, Marian T. Flattery, William E. Dickheiser, Dorothy Pierce and Robert Powderly after reasonable inquiry of those responsible for the area in question.

“Liability” means any debt, obligation, duty or liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, joint or several liability).

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“Lien” means any mortgage, lien, pledge, charge, security interest, hypothecation or similar encumbrance (including any restriction on the transfer of any asset).

“Material Adverse Effect” means, (i) with respect to the obligations of the Syngenta Parties hereunder or the conditions to Closing in Section 10.02, a material adverse effect on the financial condition, activities, assets or results of operations of (A) the Purchased Assets and the Research Activities taken as a whole (for purposes of Section 10.02) or (B) for purposes of determining any indemnity obligation of the Syngenta Parties under Article 11, the Purchased Assets or the Research Activities (clause (i)(A) or (i)(B), as applicable, subject to the exceptions and provisos below in this definition, being referred to as a “TMRI Material Adverse Effect”), and (ii) with respect to Diversa, a material adverse effect on the financial condition, business, assets or results of operations of Diversa and its Subsidiaries, taken as a whole (clause (ii), subject to the exceptions and provisos below in this definition, being referred to as a “Diversa Material Adverse Effect”), except, in each case, any such effect resulting from or arising in connection with this Agreement or the transactions contemplated hereby or the announcement hereof, and provided that none of the following will be deemed in and of themselves, either alone or in combination, to constitute a Material Adverse Effect (A) any change in the market price or trading volume of Diversa’s common stock after the date hereof or any change in the stock market generally, (B) any failure by Diversa or the Syngenta Parties to meet internal projections or forecasts or published revenue or earnings predictions, (C) any adverse changes, state of facts or developments attributable to (i) conditions affecting the industries in which the Syngenta Parties or Diversa (as applicable) operates or conducts business generally, (ii) changes in the U.S. economy as a whole, (iii) change in accounting requirements or principles or any change in applicable law, statute, regulation or rule or (iv) political conditions generally or terrorist activities or conditions of war.

“Nasdaq” means the Nasdaq Stock Market, Inc.

“Nasdaq Rule” means any rule or other requirement of, or any criteria for listing or continued trading through, Nasdaq.

“Novartis Stock Purchase Agreement” means the Stock Purchase Agreement dated as of January 25, 1999 by and between Diversa and Novartis Agribusiness Biotechnology Research, Inc.

“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

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“Order” means any order, judgment, injunction, edict, ruling or similar decree of any Governmental Body.

“Patent” means any United States or foreign patent or patent application (including, without limitation, any reissue, extension, substitution, confirmation, registration, revalidation, addition, continuation, continuation-in-part and division thereof) and any invention or discovery claimed or disclosed therein.

“Permitted Liens” means (i) Liens arising under the lease agreements disclosed on Schedule 2.01, (ii) Liens for taxes, assessments and similar charges (A) that are not yet due and payable or (B) that are being contested in good faith (and, in the case of (B), which have been disclosed to the other party hereto) or (iii) mechanic’s, materialman’s, carrier’s, repairer’s and other similar Liens arising or incurred in the ordinary course of business or that are not yet due and payable.

“Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Plant Health Technology” has the meaning set forth in the Intellectual Property License Agreement.

“Platform Technology” has the meaning set forth in the Collaboration Agreement.

“Pre-Closing Tax Period” means (i) any Tax Period ending on or before the Closing Date and (ii) with respect to a Tax Period that commences before but ends after the Closing Date, the portion of such Tax Period up to and including the Closing Date.

“Proceeding” means any action, suit, litigation, arbitration, investigation or similar proceeding (whether civil, criminal, administrative, investigative or appellate) commenced, brought, conducted or heard by or before any Governmental Body.

“Registration Rights Agreement” means that Registration Rights Agreement dated as of the date hereof among Diversa, the Syngenta Parties and Syngenta Seeds AG.

“Representatives” means officers, directors, employees, agents, attorneys, accountants, advisors and other representatives.

“Research Activities” means the conduct and activities conducted by the Syngenta Parties at TMRI as of the date of this Agreement, that primarily involve (i) the Platform Technology or (ii) the Plant Health Technology (but only to the extent licensed under Section 2.2 of the Intellectual Property License Agreement).

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“Rights Plan” means the Rights Agreement between Diversa and American Stock Transfer and Trust Company, as Rights Agent, dated as of December 13, 2000, as amended as contemplated in Section 4.05.

“SEC” means the Securities and Exchange Commission.

“Subsidiary” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such Person.

“Tax” means (i) any tax, governmental fee or other like assessment or charge of any kind whatsoever (including, but not limited to, withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any governmental authority (a “Taxing Authority”) responsible for the imposition of any such tax (domestic or foreign), or (ii) liability for the payment of any amounts of the type described in (i) as a result of being party to any agreement or any express or implied obligation to indemnify any other Person.

“Tax Return” means any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information.

“TMRI Intellectual Property Rights” means all Intellectual Property Rights owned by or licensed to any of the Syngenta Parties, with the right to sublicense, and used or held for use primarily in the conduct of the Research Activities.

“Trademark” means all assumed fictitious business names, tradenames, registered and unregistered trademarks (whether or not related to a published work), registered or unregistered service marks and applications for any of the foregoing.

“Transaction Documents” means each of this Agreement, the Collaboration Agreement, the Intellectual Property License Agreement, the Registration Rights Agreement, the Assignment and Assumption Agreement, and the Warrant.

“Warrant Shares” means the shares of Diversa Common Stock issued or issuable upon exercise of the Warrant.

(b)    Each of the following terms is defined in the Section set forth opposite such term:

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Term	Section
Accounting Referee	2.06
Allocation Statement	2.06
Apportioned Obligations	8.01
Appraiser	2.06
Assignment and Assumption Agreement	2.07
Assumed Liabilities	2.03
Basic Allocation	2.06
Closing	2.07
Contracts	2.01
Diversa	Preamble
Diversa Proxy Materials	4.09
Diversa SEC Documents	4.08
Diversa Stockholders Meeting	6.02
Estimated Transfer Agent’s Certificate	2.07
Excluded Assets	2.02
Excluded Liabilities	2.04
Indemnified Party	11.03
Indemnifying Party	11.03
Post-Closing Tax Period	8.01
Purchased Assets	2.01
Purchase Price	2.06
Required Consents	3.05
Shares	2.06
SPARTAG	Preamble
Syngenta Parties	Preamble
Syngenta Trademarks and Tradenames	2.02
TMRI	Preamble
TMRI Employees	3.11
Transfer Taxes	8.01
Transferred Assets	2.06
Transferred Employee	9.01
Warrant	2.06

ARTICLE 2

PURCHASE AND SALE

Section 2.01.  Purchase and Sale.  Upon the terms and subject to the conditions of this Agreement, (i) Diversa agrees to acquire from the Syngenta Parties, and the Syngenta Parties agree to grant to Diversa, the Intellectual Property Licenses, and (ii) Diversa agrees to purchase from the Syngenta Parties, and the Syngenta Parties agree to sell, convey, transfer, assign and deliver (on a “where is” basis) to Diversa at the Closing, free and clear of all Liens, other than Permitted Liens, good and valid title to only the following assets and properties owned, held or used by the Syngenta Parties in the conduct of the Research

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Activities (such assets and properties in clauses (a) through (d) below, referred to collectively herein as the “Purchased Assets”):

(a)    the equipment, laboratory supplies, furniture and other personal property and interests therein listed on Schedule 2.01 (other than those supplies listed in Schedule 2.01 that are consumed in the ordinary course between the date hereof and the Closing Date);

(b)    each of the contracts, agreements, leases, licenses, commitments and other instruments listed on Schedule 2.01 (collectively, the “Contracts”);

(c)    all claims and causes of action of the Syngenta Parties against other Persons (regardless of whether or not such claims or causes of action have been asserted by the Syngenta Parties) pertaining to the Purchased Assets identified under clauses (a) and (b) above, but only to the extent not relating to any Excluded Assets or Excluded Liabilities; and

(d)    all books, records, files and papers, instructions and all other such documents, whether in hard copy or computer format, that relate solely to the Purchased Assets identified under clauses (a) through (b) above (or any portion thereof that relates solely to title, ownership or maintenance of any such Purchased Asset), but excluding those relating to any data, software or other Intellectual Property Rights.

Notwithstanding the foregoing, where the assets of a wholly owned Affiliate of TMRI consist exclusively of assets described in Schedules 2.01 or the attachments thereto, at the election of the Syngenta Parties, all of the interests in such Affiliate will be treated as Purchased Assets and the assets of such Affiliate will not be treated as Purchased Assets; provided that (i) such Affiliate is newly formed and has no Liabilities other than Assumed Liabilities (any such Liabilities other than Assumed Liabilities to be Excluded Liabilities) and (ii) there is no cost or further obligation to Diversa from such election.

Section 2.02.  Excluded Assets.  Diversa expressly understands and agrees that it is acquiring only the Purchased Assets and the Intellectual Property Licenses, and that all other assets and properties of the Syngenta Parties and their Affiliates shall be excluded from the Purchased Assets and retained by the Syngenta Parties and their Affiliates (the “Excluded Assets”), including as Excluded Assets the following assets and properties of the Syngenta Parties or their Affiliates:

(a)    all of the Syngenta Parties’ and their Affiliates’ cash and cash equivalents on hand and in banks;

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(b)    subject to Section 2.01(c), insurance policies relating to the Research Activities and all claims, credits, causes of action or rights thereunder;

(c)    all Intellectual Property Rights owned by or licensed to the Syngenta Parties or their Affiliates (including the marks and names set forth on Schedule 2.02 (the “Syngenta Trademarks and Tradenames”), but subject to the licenses granted to Diversa under the Intellectual Property License Agreement or the Collaboration Agreement;

(d)    subject to Section 2.01(d), all books, records, files and papers, scientific and research materials, research and project plans, studies, lab notebooks, instructions, software and all other such materials, whether in hard copy or computer format, and all minute books and corporate records of the Syngenta Parties and their Affiliates; and

(e)    the property and assets described on Schedule 2.02.

Section 2.03.  Assumed Liabilities.  Upon the terms and subject to the conditions of this Agreement, Diversa agrees, effective at the time of the Closing, to assume all of the following Liabilities of the Syngenta Parties and their Affiliates relating to or arising out of the Purchased Assets or the conduct of the Research Activities, except for the Excluded Liabilities (the “Assumed Liabilities”):

(a)    all Liabilities arising under the Contracts, but only to the extent such obligations arise after the Closing Date;

(b)    Apportioned Obligations payable by Diversa as provided in Article 8; and

(c)    except as provided in Article 9, all Liabilities relating to employee benefits or compensation arrangements (i) arising on or after the Closing Date with respect to any Transferred Employee and (ii) that relate to Diversa’s employment of such Transferred Employees.

Section 2.04.  Excluded Liabilities.  Notwithstanding any provision in this Agreement or any other writing to the contrary (but without limiting its indemnification obligations under Article 11), Diversa is assuming only the Assumed Liabilities and is not assuming any other Liability of the Syngenta Parties or their Affiliates, whether presently in existence or arising hereafter. All such other Liabilities shall be retained by and remain Liabilities of the Syngenta Parties and their Affiliates (all such Liabilities not being assumed being herein referred to as the “Excluded Liabilities”).

Section 2.05.  Assignment of Contracts and Rights.  (a) Anything in this Agreement to the contrary notwithstanding, with respect to any Contract, Diversa

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may elect not to have any or all of such Contracts be included in the Purchased Assets by written notice of such election delivered to the Syngenta Parties within 30 days of the date hereof; provided that (i) if Diversa elects not to have any lease identified under Section 2.01(b) included in the Purchased Assets, then the related equipment or other property subject to such lease shall also be excluded from the Purchased Assets and (ii) as of the date hereof, (A) any such Contract with respect to which Diversa exercises such election (and any related equipment or other property in the case of a lease) shall be deemed to (1) have been removed from Schedule 2.01 (and any other Schedule on which such Contract (or any related equipment or other property) is disclosed) and (2) cease to be a Contract for all purposes hereunder (and all Liabilities arising under such Contract shall be Excluded Liabilities) and (B) the amount of the net book value of the Purchased Assets identified in Section 2.01(a) shall be deemed to have been reduced accordingly.

(b)    Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Contract or any claim or right or any benefit arising thereunder or resulting therefrom if such assignment, without the consent of a third party thereto, would constitute a breach or other contravention of such Contract or in any way adversely affect the rights of Diversa thereunder. The parties hereto will use their reasonable efforts to obtain the consent of the other parties to any such Contract or any claim or right or any benefit arising thereunder for the assignment thereof to Diversa as Diversa may request, without any material conditions to such transfer or material changes or modifications of terms thereunder, in a manner to permit the Research Activities to be conducted by Diversa following the Closing as such activities are conducted by the Syngenta Parties as of the date of this Agreement. If such consent is not obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of Diversa thereunder so that Diversa would not in fact receive all such rights, the Syngenta Parties shall have no further obligation to Diversa with respect to such Contracts. The foregoing shall not require any payment of money by Diversa or the Syngenta Parties to obtain any such consent. The Syngenta Parties will promptly pay to Diversa, when received, all monies received by any Syngenta Party under any Contract or any claim or right or any benefit arising thereunder, except to the extent the same represents an Excluded Asset.

Section 2.06.  Purchase Price; Allocation of Purchase Price.  (a) The purchase price (the “Purchase Price”) payable by Diversa for the Purchased Assets, the Syngenta Parties’ payment to Diversa of $500,000 in cash and the Syngenta Parties’ entry into the Transaction Documents to which any of them is a party (collectively, the “Transferred Assets”) is (subject to adjustment pursuant to Section 2.06(b)):

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(i)    that number of shares (the “Shares”) of Diversa Common Stock equal to 14%¹ of the outstanding shares of Diversa Common Stock as of the close of business (in New York City) on the Closing Date, pro forma for the issuance to the Syngenta Parties of the Shares and the Warrant (assuming full exercise of the Warrant);

(ii)   a warrant, in the form attached hereto as Exhibit A (the “Warrant”), to acquire that number of shares of Diversa Common Stock equal to 3%² of the outstanding shares of Diversa Common Stock as of the close of business on the Closing Date, pro forma for the issuance to the Syngenta Parties of the Shares and the Warrant (assuming full exercise of the Warrant);

(iii)  assumption of the Assumed Liabilities; and

(iv)  Diversa’s entry into the Transaction Documents to which it is a party.

(b)    If, during the period between the date of this Agreement and the Closing, there shall be any reclassification, restructuring, business combination, spin-off, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend thereon with a record date during such period or other similar transaction involving Diversa, its Subsidiaries, its assets or Diversa Common Stock, then an appropriate adjustment, as applicable, shall be made to each of the number of Warrant Shares, exercise price of the Warrant, and, if applicable, amount and/or type of consideration contemplated in Section 2.06(a)(i) and Section 2.06(a)(ii).

(c)    Not later than 35 days after the date of this Agreement, the Syngenta Parties shall deliver to Diversa a statement (the “Basic Allocation”), allocating the Purchase Price (plus Assumed Liabilities, to the extent properly taken into account under Section 1060 of the Code) between SPARTAG and TMRI, based on the relative value of Transferred Assets transferred to Diversa by such Syngenta Party. If within 5 days after the delivery of the Basic Allocation Diversa notifies the Syngenta Parties in writing that Diversa objects to the allocation set forth in the Basic Allocation, Diversa and the Syngenta Parties shall use commercially reasonable efforts to resolve such dispute within 10 days. In the event that Diversa and the Syngenta Parties are unable to resolve such dispute within 10 days, Diversa and the Syngenta Parties shall jointly retain a nationally recognized accounting firm (the “Accounting Referee”) to resolve the dispute

¹    This number will be equal to 16.8674% of the shares of Diversa Common Stock outstanding as of the close of business (in New York City) on the Closing Date.

²    This number will be equal to 3.6144% of the shares of Diversa Common Stock outstanding as of the close of business (in New York City) on the Closing Date.

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within 15 days. Upon resolution of the dispute, the Basic Allocation shall be adjusted to reflect such resolution. The costs, fees and expenses of the Accounting Referee shall be borne equally by Diversa and the Syngenta Parties.

(d)    Not later than 25 days prior to the Closing, Diversa shall deliver to the Syngenta Parties a statement (the “Allocation Statement”), allocating the Purchase Price (plus Assumed Liabilities, to the extent properly taken into account under Section 1060 of the Code) among the Transferred Assets in accordance with Section 1060 of the Code, subject to the Basic Allocation and based on an appraisal carried out by a third party appraiser selected by Diversa with the consent of the Syngenta Parties, which shall not be unreasonably withheld (the “Appraiser”). The Syngenta Parties will provide the Appraiser with such access to information as needed to prepare the appraisal, but not in excess of Diversa’s access to information as set forth in Section 7.02. The Allocation Statement to be delivered by Diversa shall be accompanied by a supporting study prepared by the Appraiser. The costs, fees and expenses of the preparation of the Allocation Statement by the Appraiser shall be borne solely by Diversa. If within 5 days after the delivery of the Allocation Statement the Syngenta Parties notify Diversa in writing that the Syngenta Parties object to the allocation set forth in the Allocation Statement, Diversa and the Syngenta Parties shall use commercially reasonable efforts to resolve such dispute within 5 days. In the event that Diversa and the Syngenta Parties are unable to resolve such dispute within 5 days, Diversa and the Syngenta Parties shall jointly retain the Accounting Referee to resolve the dispute within 10 days. Upon resolution of the dispute, the Allocation Statement shall be adjusted to reflect such resolution. The costs, fees and expenses of the Accounting Referee shall be borne equally by Diversa and the Syngenta Parties.

(e)    The parties hereto agree to (i) be bound by the Allocation Statement and (ii) act in accordance with the Allocation Statement in the preparation, filing and audit of any Tax return (including filing Form 8594 with their federal income Tax returns for the taxable year that includes the date of the Closing).

(f)    Not later than 30 days prior to the filing of their respective Forms 8594 relating to this transaction, each party hereto shall deliver to the other party a copy of its Form 8594.

Section 2.07.  Closing.  The closing (the “Closing”) of the purchase and sale of the Purchased Assets and the assumption of the Assumed Liabilities hereunder shall take place at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York, as soon as possible, but in no event later than five Business Days, after satisfaction of the conditions set forth in Article 10, or at such other time or place as the parties hereto may agree in writing. At the Closing:

(a)    The Syngenta Parties shall deliver to Diversa $500,000 in immediately available funds by wire transfer to an account of Diversa

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designated by Diversa, by notice to the Syngenta Parties, not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of Diversa in such amount).

(b)    Diversa shall deliver to the Syngenta Parties a certificate (the “Estimated Transfer Agent’s Certificate”) from Diversa’s stock transfer agent as to the number of outstanding shares of Diversa Common Stock as of the close of business (in New York City) two Business Days prior to the Closing Date.

(c)    Diversa shall deliver, free and clear of all Liens (other than transfer restrictions under applicable securities laws), to one or both of the Syngenta Parties or one or more of their Affiliates (as designated by the Syngenta Parties not later than two Business Days prior to the Closing Date) certificates for the Shares duly endorsed or accompanied by stock powers duly endorsed in blank, with any required transfer stamps affixed thereto.

(d)    Diversa shall deliver, free and clear of all Liens (other than transfer restrictions under applicable securities laws and under the terms of the Warrant), to one or both of the Syngenta Parties or one or more of their Affiliates (as designated by the Syngenta Parties not later than two Business Days prior to the Closing Date) the Warrant.

(e)    Diversa and TMRI shall enter into an Assignment and Assumption Agreement substantially in the form attached hereto as Exhibit B (the “Assignment and Assumption Agreement”), and, subject to the provisions hereof, the Syngenta Parties shall deliver to Diversa such deeds, bills of sale, endorsements, assignments and other good and sufficient instruments of conveyance and assignment as the parties and their respective counsel shall deem reasonably necessary to vest in Diversa all right, title and interest in, to and under the Purchased Assets.

Section 2.08.  Post-Closing True-Up as to Shares and Warrant.  Diversa shall, as promptly as practicable after Closing (and in any event no later than five Business Days after the Closing Date), deliver to the Syngenta Parties a certificate (the “Closing Transfer Agent’s Certificate”) from Diversa’s stock transfer agent as to the number of outstanding shares of Diversa Common Stock as of the close of business (in New York City) on the Closing Date. In the event the number of outstanding shares of Diversa Common Stock set forth on the Estimated Transfer Agent’s Certificate is less than the number of outstanding shares of Diversa Common Stock set forth on the Closing Transfer Agent’s Certificate, then the number of Shares and Warrant Shares shall be appropriately increased (so that the total number of Shares and Warrant Shares underlying the Warrant issued to the Syngenta Parties (or their Affiliates) under this Agreement represent, as of the close of business (New York City time) on the Closing Date, the ownership

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percentage in Diversa equal to the respective percentages set forth in Sections 2.06(a)(i) and 2.06(a)(ii)), and Diversa shall as promptly as practicable issue to the Syngenta Parties (or their designated Affiliates) such additional Shares, and execute an appropriate amendment to the Warrant reflecting such increase.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF THE SYNGENTA PARTIES

Each Syngenta Party represents and warrants to Diversa that:

Section 3.01.  Corporate Existence and Power.  (a) SPARTAG is a corporation duly organized, validly existing and in good standing under the laws of Switzerland and has all corporate powers and all Governmental Authorizations required to carry on its business as now conducted, except for those Governmental Authorizations the absence of which does not and would not reasonably be expected to have a TMRI Material Adverse Effect.

(b)    TMRI is a corporation duly organized, validly existing and in good standing under the laws of Delaware and has all corporate powers and all Governmental Authorizations required to carry on its business as now conducted, except for those Governmental Authorizations the absence of which does not and would not reasonably be expected to have a TMRI Material Adverse Effect.

Section 3.02.  Corporate Authorization.  The execution, delivery and performance by each Syngenta Party of this Agreement and each other Transaction Document to which it is a party and the consummation of the transactions contemplated hereby and thereby are within its corporate powers and have been duly authorized by all necessary corporate action on the part of such Syngenta Party, its board of directors and its stockholders, as necessary. This Agreement and each other Transaction Document to which it is a party constitutes a valid and binding agreement of each Syngenta Party, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency or other similar laws affecting the rights and remedies of creditors generally and general principles of equity.

Section 3.03.  Governmental Authorization.  Schedule 3.03 identifies each material Governmental Authorization that is held by any Syngenta Party and relates to or is necessary for the conduct of the Research Activities (other than occupancy licenses or local business licenses). Each Governmental Authorization identified on Schedule 3.03 is in full force and effect. To the Knowledge of Syngenta, no event has occurred and no condition exists that (with or without notice or lapse of time) would reasonably be expected to constitute or result in a material violation of or a material failure to comply with any Governmental Authorization identified or required to be identified on Schedule 3.03. Since October 1, 2001, none of the Syngenta Parties has received any written notice or other communication from any Governmental Body or any other Person regarding

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any (i) actual, alleged or potential violation of or failure to comply with any term or requirement of any such Governmental Authorization or (ii) any actual, proposed or potential revocation, withdrawal, suspension, cancellation, termination, or modification of any such Governmental Authorization.

Section 3.04.  Noncontravention.  The execution, delivery and performance by each Syngenta Party of this Agreement and each other Transaction Document to which it is a party and the consummation of the transactions contemplated hereby and thereby on its part do not and will not (i) violate the certificate of incorporation, bylaws or other charter documents of such Syngenta Party, (ii) assuming compliance with the HSR Act, violate any applicable law, rule or regulation, judgment, injunction, order or decree, (iii) assuming the obtaining of all Required Consents, constitute a default under or give rise to any right of termination, cancellation or acceleration of any right or obligation under any Contract or to a loss of any benefit relating to the Purchased Assets or the Research Activities to which any Syngenta Party may be entitled, except such as would not reasonably be expected to have a TMRI Material Adverse Effect or (iv) result in the creation or imposition of any Lien on any Purchased Asset, except for Permitted Liens.

Section 3.05.  Required Consents.  Schedule 3.05 sets forth each Contract requiring a consent by or notice to any Person as a result of the execution, delivery and performance of this Agreement or any other Transaction Document (the “Required Consents”). No vote or other approval by the stockholders of any of the Syngenta Parties (other than the approval of TMRI’s sole stockholder, Syngenta Corporation which has been obtained) is or will be required in connection with the execution, delivery or performance of any of the Transaction Documents or the transactions contemplated thereby.

Section 3.06.  Contracts.  Schedule 3.06 identifies each material contract or contractual instrument, other than the Contracts, to which a Syngenta Party is a party related to or necessary for the conduct of the Research Activities. The Syngenta Parties have delivered to Diversa accurate and complete copies of each Contract, including all amendments thereto. Each Contract is a valid and binding agreement of a Syngenta Party and is in full force and effect. None of the Syngenta Parties, or, to the Knowledge of Syngenta, any other party thereto, is in default or breach under the material terms of any such Contract. None of the Syngenta Parties has received any written notice or other regarding any actual, alleged or potential material violation or material breach of, or material default under, any Contract or waived any material right under any Contract.

Section 3.07.  Litigation.  There is no Proceeding pending before any Governmental Body, or to the Knowledge of Syngenta, threatened, (i) (A) against or affecting any aspect of the Research Activities or any part of the Purchased Assets or (B) against a Syngenta Party (or any of their Affiliates) and that is likely to result in a liability on the Research Activities or the Purchased Assets or (ii)

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which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by the Transaction Documents.

Section 3.08. Court Orders. There is no Order specifically imposed on any Syngenta Party or any of its Affiliates that relates to the Research Activities or the Purchased Assets. To the Knowledge of Syngenta, no employee of the Syngenta Parties is subject to any Order that may prohibit employees from engaging in or continuing any conduct, activity or practice relating to the Research Activities. To the Knowledge of Syngenta, there is no proposed Order that, if issued or otherwise put into effect, (i) would have or would reasonably be expected to have TMRI Material Adverse Effect or a material adverse effect on the ability of the Syngenta Parties to comply with or perform any covenant or obligation under any of the Transaction Documents or (ii) may have the effect of preventing, delaying, making illegal or otherwise interfering with any of the transactions contemplated by the Transaction Documents.

Section 3.09. Properties. (a) The Syngenta Parties have good and valid title to, or in the case of any leased personal property, have valid leasehold interests in, all of the Purchased Assets. No Affiliate of either of the Syngenta Parties has title to, possession of or custody over, or in the case of leased property any leasehold interests in, any of the Purchased Assets. None of the Purchased Assets is subject to any Lien, other than Permitted Liens. Other than the express representations and warranties made in this Article 3, the Syngenta Parties make no representations or warranties with respect to the Purchased Assets (and expressly exclude any implied representation or warranty as to condition, merchantability or suitability or fitness for a particular purpose).

(b) At the Closing, the Syngenta Parties will transfer, assign and convey to Diversa good and valid title to the Purchased Assets, free and clear of any Liens, other than Permitted Liens.

(c) The Purchased Assets, the Intellectual Property Licenses and the rights granted to Diversa under the other Transaction Documents constitute materially all of the assets, properties and rights necessary to carry on the Research Activities as conducted on the date of this Agreement, except as set forth on Schedule 3.09(c), and assuming no election is made by Diversa pursuant to Section 2.05(a).

(d) As of November 29, 2002, the net book value (determined in accordance with the accounting principles and practice of TMRI applied on a consistent basis) of the Purchased Assets capitalized on TMRI’s books and identified in Schedule 2.01, was not less than $7,800,000, and in addition, there were other items included in the Purchased Assets identified in Section 2.01 (such as supplies) with an original cost of not less than $500,000.

The provisions of Section 3.09(a), (b) and (d) do not cover Intellectual Property Rights, which are dealt with in Section 3.10.

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Section 3.10. Intellectual Property. (a) Schedule 3.10(a)-1 identifies and provides a brief description of each Patent, Copyright, Trademark and material trade secret included in the TMRI Intellectual Property Rights that is owned by any of the Syngenta Parties (“Owned Intellectual Property Rights”). Schedule 3.10(a)-2 identifies and provides a brief description of each Patent, Copyright and Trademark included in the TMRI Intellectual Property Rights (or that would be included in the TMRI Intellectual Property Rights if such right were able to be sublicensed) that is owned by any other Person and that is licensed to, or used by, any of the Syngenta Parties (but excluding any such Intellectual Property Right that is licensed to any of the Syngenta Parties under (i) any third-party software license for basic information technology infrastructure or (ii) any third-party software license or third-party database license that, in the case of clause (ii), (A) is commercially available for less than $15,000 per annum per license and (B) is not included in the Purchased Assets) (such Intellectual Property Rights, subject to such exclusion, the “Licensed-In Intellectual Property Rights”), indicating the scope of the license granted to the Syngenta Parties in such Licensed-In Intellectual Property Rights, whether such rights are exclusive and whether such rights may be sublicensed. Schedule 3.10(a)-3 lists the license agreement or other contract under which each Licensed-In Intellectual Property Right is being licensed to or used by any of the Syngenta Parties (“Third Party License”). A true and complete copy of each Third Party License (including all amendments thereof) has been provided to Diversa. Schedule 3.10(a)-4 lists each Owned Intellectual Property Right under which a license or any other right has been granted to any Person (other than to Affiliates of the Syngenta Parties in the Syngenta Exclusive Field (as defined in the Collaboration Agreement)) identifying the license agreement or other contract under which such right has been granted. The Syngenta Parties have good and valid title to all of the Owned Intellectual Property Rights, free of any Liens other than those listed on Schedule 3.10(a)-4, and have (to Syngenta’s Knowledge, in the case of patent applications and software Copyrights), except as set forth in Schedule 3.10(a)-5, a valid right to use and otherwise exploit, and to license others to use and otherwise exploit, all TMRI Intellectual Property Rights. The Syngenta Parties are not obligated to make any payment to any Person for the use or other exploitation of any Owned Intellectual Property Rights or, except pursuant to the Third Party Licenses, any Licensed-In Intellectual Property Rights.

(b) The Syngenta Parties have taken reasonable measures and precautions necessary to protect and maintain the confidentiality and secrecy of all TMRI Intellectual Property Rights. The Syngenta Parties’ records relating to the filing, prosecution, grant, registration and maintenance of the Patents, Trademarks and Copyrights included in the TMRI Intellectual Property Rights have been made available to Diversa for review.

(c) Except as set forth in Schedule 3.10(c), none of the TMRI Intellectual Property Rights or the practice thereof as contemplated by the Transaction Documents infringes or conflicts with any Intellectual Property

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Rights owned or used by any other Person (except as to patent applications and software Copyrights, as to which the foregoing representation shall be deemed to be qualified by Syngenta’s Knowledge). To the Knowledge of Syngenta, no other Person is infringing, misappropriating or making any unlawful use of any TMRI Intellectual Property Rights.

(d) Except as set forth in Schedule 3.10(d), the TMRI Intellectual Property Rights identified in Schedules 3.10(a)-1, 3.10(a)-2 and 3.10(a)-3 constitute all the Intellectual Property Rights owned or licensed by any of the Syngenta Parties (or their Affiliates) and used or held for use in the Research Activities as conducted on the date of this Agreement that (i) are necessary or appropriate for the use of all tools, technologies and/or methods relating to proteomics, metabolomics, RNA dynamics and bioinformatics and methods to analyze and link these components of genomics or (ii) are necessary or appropriate for the activities in the fungal program as conducted by the pathogen research team of TMRI as of the date of this Agreement. The Syngenta Parties have not entered into any covenant not to compete or contract limiting its ability to exploit fully any of the TMRI Intellectual Property Rights.

(e) Except as set forth in Schedule 3.10(e), the Syngenta Parties have no reason to believe that any current or former employee, officer, director, shareholder, consultant or independent contractor of or to any of the Syngenta Parties, or any predecessor in interest, has any claim, right or interest in or with respect to the TMRI Intellectual Property Rights.

(f) All significant activities conducted by the Syngenta Parties and their Affiliates that primarily involve (i) the Platform Technology or (ii) the Plant Health Technology (but, with respect to clause (ii), only to the extent licensed under Section 2.2 of the Intellectual Property License Agreement) are, as of the date of this Agreement, conducted at TMRI.

Section 3.11. Employees. (a) Schedule 3.11(a) accurately sets forth, with respect to each employee of TMRI as of the date of this Agreement who has been designated by the Syngenta Parties as being eligible to be a “Transferred Employee” pursuant to Article 9 (including any employee who is on a leave of absence or on layoff status) (such individuals, collectively, “TMRI Employees”): (i) the name and title of such employee; (ii) the aggregate dollar amounts or target percentage payments of the compensation (including wages, salary, commissions, director’s fees, fringe benefits, bonuses, profit-sharing payments and other payments) received by such employee from any of the Syngenta Parties or any of their Affiliates with respect to services performed through September 30, 2002 as well as such employee’s target bonus for fiscal 2002); and (iii) such employee’s annualized compensation as of the date of this Agreement. The parties hereto agree that the Syngenta Parties may modify Schedule 3.11(a) at any time prior to Closing by adding the names of additional employees of TMRI who are designated by the Syngenta Parties as being eligible to be a “Transferred Employee” pursuant to Article 9.

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(b) Schedule 3.11(b) identifies each employment contract or any union contract, collective bargaining agreement or similar contract related to or covering any of the TMRI Employees.

(c) Except as provided on Schedule 3.11(c), the employment of the TMRI Employees is terminable by the Syngenta Parties at will.

(d) The Syngenta Parties have disclosed to Diversa any notice they have received from a TMRI Employee indicating such employee’s intent to refuse to accept an offer of employment with Diversa for any reason, including because of the consummation of the transactions contemplated by this Agreement.

(e) To the Knowledge of Syngenta, no TMRI Employee is a party to or is bound by any confidentiality agreement, noncompetition agreement or other contract (with any Person) that may have an adverse effect on the performance by such employee of any of his duties or responsibilities as an employee of the Syngenta Parties or as an employee of Diversa; provided that Diversa acknowledges that certain of the TMRI Employees have academic positions, scientific advisory board positions and other positions with Persons other than TMRI, and any such confidentiality agreement, noncompetition agreement or other contract relating to such position shall not be deemed to constitute a breach of this Section 3.11(e). All such TMRI Employees who have, to Syngenta’s Knowledge, such positions, are listed on Schedule 3.11(e).

Section 3.12. Tax Matters. Subject to Section 8.01, the Syngenta Parties have timely paid all Taxes which will have been required to be paid on or prior to the date hereof, the nonpayment of which would result in a Lien on any Purchased Asset or give rise to any liability on the part of Diversa. Syngenta has established, in accordance with generally accepted accounting principles applied on a basis consistent with that of preceding periods, adequate reserves for the payment of, and will timely pay, all Taxes which arise from or with respect to the Purchased Assets or the operation of the Research Activities that are incurred in or attributable to the Pre-Closing Tax Period, the nonpayment of which would result in a Lien on any Purchased Asset or give rise to any liability on the part of Diversa.

Section 3.13. Securities Matters. (a) Each Syngenta Party acknowledges that the Shares, the Warrant and the Warrant Shares have not been registered under the 1933 Act, on the grounds that the issuance thereof to the Syngenta Parties in connection with the transactions contemplated in this Agreement is exempt from registration pursuant to Section 4(2) of the 1933 Act, and that the reliance of Diversa on such exemption is predicated in part on the acknowledgements, representations and warranties set forth in this Section 3.13.

(b) The Shares, the Warrant and the Warrant Shares will be acquired by the Syngenta Parties for investment for its own account and not with a view to, or

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for sale in connection with, any distribution thereof within the meaning of the 1933 Act.

(c) Each Syngenta Party: (i) acknowledges that the Shares, the Warrant and the Warrant Shares to be issued to Syngenta may not be transferred unless such Shares, Warrant or Warrant Shares are subsequently registered under the 1933 Act or an exemption from registration is available, and (ii) are aware that Diversa is not obligated to register any sale, transfer or other disposition of the Shares, the Warrant and the Warrant Shares except as contemplated by the Registration Rights Agreement.

(d) Each Syngenta Party (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Shares, the Warrant and the Warrant Shares and has the capacity to protect its own interests, and is capable of bearing the economic risks of such investment. Each Syngenta Party is an “accredited investor” as such term is defined in Rule 501(a) as promulgated under the 1933 Act.

(e) Each Syngenta Party acknowledges that the certificates representing the Shares, the Warrant, and the Warrant Shares will contain restrictive legends noting the restrictions on transfer described in this Section 3.13 and under federal and applicable state securities laws, and that appropriate “stop-transfer” instructions will be given to Diversa’s stock transfer agent.

(f) The office or offices at which the Syngenta Parties made their investment decisions with respect to the Shares, the Warrant and the Warrant Shares is or are located in Basel, Switzerland.

Section 3.14. Finders’ Fees. Except for Goldman, Sachs & Co., whose fees will be paid by the Syngenta Parties, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Syngenta Parties or their Affiliates who might be entitled to any fee or commission in connection with the transactions contemplated by the Transaction Documents.

Section 3.15. Information Provided by Syngenta. The information supplied by the Syngenta Parties to be included in the Diversa Proxy Materials, will not, as of the date of the Diversa Proxy Materials or as of the date of the Diversa Stockholder Meeting, (i) contain any statement that is inaccurate or misleading with respect to any material fact, or (ii) omit to state any material fact in order to make the information (in light of the circumstances under which it is provided) not false or misleading.

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ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF DIVERSA

Diversa represents and warrants to the Syngenta Parties that:

Section 4.01. Corporate Existence and Power. Diversa is a corporation duly incorporated, validly existing and in good standing under the laws of Delaware and has all corporate powers and all Governmental Authorizations required to carry on its business as now conducted, except for those Governmental Authorizations the absence of which does not and would not reasonably be expected to have a Diversa Material Adverse Effect.

Section 4.02. Corporate Authorization. The execution, delivery and performance by Diversa of this Agreement and each other Transaction Document and the consummation of the transactions contemplated hereby and thereby are within the corporate powers of Diversa and, except for any required approval by Diversa’s stockholders under the Nasdaq Rules in connection with the transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Diversa, including its Board of Directors. This Agreement and each other Transaction Document constitutes a valid and binding agreement of Diversa, enforceable against Diversa in accordance with its terms, except as may be limited by bankruptcy, insolvency or other similar laws affecting the rights and remedies of creditors generally and general principles of equity and as the enforceability of the indemnification provisions included in the Registration Rights Agreement may be limited by public policy. The Board of Directors has resolved to recommend to the stockholders of Diversa that they approve the issuance of the Shares, the Warrant and the Warrant Shares in connection with the transactions contemplated by the Transaction Documents. To Diversa’s Knowledge, the approximate aggregate number of shares of Diversa Common Stock held by the Designated Diversa Stockholders represents not less than 27% of the outstanding shares of Diversa Common Stock as of the date hereof.

Section 4.03. Governmental Authorization. The execution, delivery and performance by Diversa of this Agreement and each other Transaction Document and the consummation of the transactions contemplated hereby and thereby on its part require no material action by or in respect of, or filing with, any Governmental Body or Nasdaq other than (i) compliance with any applicable requirements of the HSR Act; (ii) compliance with any applicable requirements of the 1934 Act in connection with the Diversa Stockholder Meeting; (iii) compliance with any applicable requirements of state securities laws in connection with the sale and issuance of the Shares, the Warrant and the Warrant Shares; and (iv) compliance with any applicable requirements of the 1933 Act in connection with Diversa fulfilling its obligations under the Registration Rights Agreement.

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Section 4.04. Noncontravention. (a) The execution, delivery and performance by Diversa of this Agreement and each other Transaction Document and the consummation of the transactions contemplated hereby and thereby on its part do not and will not (i) violate the certificate of incorporation or bylaws of Diversa, (ii) assuming compliance with the matters referred to in Section 4.03, violate any applicable law, rule or regulation or judgment, injunction, order or decree, (iii) require any consent or other action by any Person under, constitute a default under or give rise to any right of termination, cancellation or acceleration of any right or obligation or to a loss of any benefit to which Diversa or any of its Affiliates is entitled under any provision of any agreement or other instrument binding upon Diversa or any of its Affiliates, except such as would not reasonably be expected to have a Diversa Material Adverse Effect or (iv) result in the creation or imposition of any Lien on any asset of Diversa, except for Permitted Liens.

(b) Without limiting the generality of Section 4.04(a)(ii), and assuming the accuracy of the Syngenta Parties’ acknowledgments, representations and warranties set forth in Section 3.13, the offering, issuance and sale of the Shares, the Warrant and the Warrant Shares hereunder is not, and at the time of issuance of such Shares, Warrant and Warrant Shares will not be, in violation, breach or contravention of the 1933 Act or, subject to obtaining any required approval by Diversa’s stockholders under the Nasdaq Rules, any Nasdaq Rule.

(c) There is no agreement or other instrument binding upon Diversa or its Affiliates which (or which would reasonably be expected to) conflict with, impair, restrict or diminish Diversa’s ability to afford to SPARTAG the rights and benefits contemplated by the Collaboration Agreement or to otherwise perform under, and consummate the transactions contemplated by, the Collaboration Agreement.

Section 4.05. Rights Plan. Diversa has taken all action necessary to exempt the Syngenta Parties and their Affiliates from becoming an “Acquiring Person” (as such term is defined in the Diversa Rights Plan) in connection with (i) the entry by each of the Syngenta Parties into this Agreement, the Stockholders Agreement with the Designated Diversa Stockholders and the other Transaction Documents to which it is a party and the acquisition by the Syngenta Parties or their Affiliates of the Shares, the Warrant and the Warrant Shares and the consummation of the transactions contemplated by the Transaction Documents and (ii) the acquisition or ownership by the Syngenta Parties or any of their Affiliates of any shares of Diversa Common Stock or other securities so long as such acquisition or ownership does not increase the beneficial ownership by the Syngenta Parties or their Affiliates of Diversa Common Stock above the total ownership percentage which the Syngenta Parties and their Affiliates hold immediately after the Closing Date (assuming full exercise of the Warrant). Diversa has taken all action necessary to exempt the Syngenta Parties from the provisions of Section 203 of the Delaware Law. No other state takeover statute other than Section 203 of the Delaware Law is applicable to the transactions

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contemplated hereby. Diversa has not entered into, and its Board of Directors has not adopted or authorized the adoption of, any shareholder rights plan or similar agreement, that would be applicable to the Syngenta Parties or their Affiliates as a result of their acquisition of the Shares, the Warrant and the Warrant Shares in connection with the transactions contemplated by the Transaction Documents or their acquisition or ownership of any other shares of Diversa Common Stock or other securities as described in clause (ii) above.

Section 4.06. Capitalization. (a) The authorized capital stock of Diversa consists of 65,000,000 shares of Diversa Common Stock and 5,000,000 shares of preferred stock, par value $0.001 per shares (the “Diversa Preferred Stock”). As of November 29, 2002, there were outstanding (i) 35,759,805 shares of Diversa Common Stock, (ii) employee stock options to purchase an aggregate of 5,230,210 shares of Diversa Common Stock (of which options to purchase an aggregate of 3,170,986 shares of Diversa Common Stock are exercisable), (iii) warrants to purchase an aggregate of 42,460 shares of Diversa Common Stock (of which warrants to purchase an aggregate of 42,460 shares of Diversa Common Stock are exercisable), and (iv) no outstanding shares of Diversa Preferred Stock. All outstanding shares of capital stock of Diversa have been duly authorized and validly issued and are fully paid and nonassessable.

(b) The affirmative vote of the holders of a majority of the shares of Diversa Common Stock present or represented by proxy at the Diversa Stockholders Meeting is the only vote of the stockholders of Diversa necessary to approve the issuance of the Shares, the Warrant and the Warrant Shares in connection with the transactions contemplated hereby.

(c) Except as set forth in this Section 4.06, there are no outstanding (i) shares of capital stock or voting securities of Diversa, (ii) securities of Diversa convertible into or exchangeable for shares of capital stock or voting securities of Diversa or (iii) options or other rights to acquire from Diversa or other obligations of Diversa to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Diversa. There are no outstanding obligations of Diversa or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the securities referred to in clause (i), (ii) or (iii) above.

Section 4.07. Valid Issuance. The Shares, the Warrant and the Warrant Shares to be issued pursuant to this Agreement have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement or the Warrant (as applicable), will have been validly issued free and clear of all Liens (other than transfer restrictions under applicable securities laws and, in the case of the Warrant, transfer restrictions under the terms of the Warrant) and will be fully paid and nonassessable and the issuance thereof is not subject to any preemptive or other similar right.

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Section 4.08. SEC Filings; Financial Statements. (a) Since October 1, 2001, Diversa and its officers have filed with the SEC all forms, statements, reports, certificates and documents required to be filed under each of the 1933 Act and the 1934 Act (collectively, the “Diversa SEC Documents”).

(b) As of its filing date, each Diversa SEC Document complied, and each such Diversa SEC Document filed subsequent to the date hereof and prior to the Closing Date will comply, as to form in all material respects with the applicable requirements of the 1933 Act and 1934 Act, as the case may be.

(c) As of its filing date, each Diversa SEC Document filed pursuant to the 1934 Act did not, and each such Diversa SEC Document filed subsequent to the date hereof and prior to the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statement made therein, in the light of the circumstances under which they were made, not misleading.

(d) The audited consolidated financial statements and unaudited consolidated interim financial statements of Diversa included in the Diversa SEC Documents fairly present, in conformity with generally accepted accounting principles applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of Diversa and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject to normal year-end adjustments in the case of any unaudited interim financial statements).

Section 4.09. Diversa Proxy Materials. (a) Each document filed by Diversa with the SEC in connection with the Diversa Stockholders Meeting, including the proxy or information statement of Diversa and any amendments or supplements thereto (the “Diversa Proxy Materials”) will, when filed, comply as to form in all material respects with the applicable requirements of the 1934 Act.

(b) Each time any Diversa Proxy Materials are distributed to stockholders of Diversa or any other solicitation of stockholders of Diversa is made by or on behalf of Diversa or any Affiliate of Diversa in connection with the issuance of the Shares, the Warrant and the Warrant Shares, and at the time the stockholders of Diversa vote on the issuance of the Shares, the Warrant and the Warrant Shares pursuant to this Agreement, the Diversa Proxy Materials (as supplemented and amended, if applicable), in light of the circumstances under which the statements contained in the Diversa Proxy Materials or any other solicitations are made, will not be false or misleading with respect to any material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or fail to contain information necessary to correct any material misstatement or omission that has arisen with respect to any earlier communication soliciting a proxy for the same meeting or subject matter. The representations and warranties contained in this Section 4.09 will not apply to statements or omissions included in the Diversa Proxy Materials based upon

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information furnished to Diversa in writing by the Syngenta Parties relating to the Syngenta Parties and being specifically for use therein.

Section 4.10. Absence of Certain Changes. Since June 30, 2002, the business of Diversa and its Subsidiaries has been conducted in the ordinary course consistent with past practice, and since the Diversa Balance Sheet Date, except as disclosed in the Diversa SEC Documents filed prior to the date hereof, there has not been:

(a) any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Diversa Material Adverse Effect;

(b) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of Diversa other than Diversa’s normal quarterly dividend, or any repurchase, redemption or other acquisition by Diversa or any of its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, Diversa or any of its Subsidiaries;

(c) any change in any method of accounting or accounting practice by Diversa or any of its Subsidiaries, except for any such change required by reason of a concurrent change in generally accepted accounting principles or Regulation S-X under the 1934 Act; or

(d) any SEC inquiry or correspondence regarding Diversa’s financial statements or reports filed pursuant to the 1934 Act.

Section 4.11. No Undisclosed Material Liabilities. There are no Liabilities of Diversa or any of its Subsidiaries, and to Diversa’s Knowledge, there is no existing condition, situation or set of circumstances that would reasonably be expected to result in such a Liability, other than those disclosed in the Diversa Balance Sheet or in the documents filed by Diversa with the SEC prior to the date hereof and those which, individually or in the aggregate, are not material to Diversa and its Subsidiaries, taken as a whole.

Section 4.12. Litigation. There is no Proceeding pending before any Governmental Body, or to the Knowledge of Diversa, threatened, (i) against or affecting Diversa or any of its Affiliates and that is reasonably likely to result in a material liability to Diversa or (ii) which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by the Transaction Documents.

Section 4.13. Compliance with Laws and Court Orders. Diversa and each of its Subsidiaries is in compliance with, and to the Knowledge of Diversa none of them is under investigation with respect to or has been threatened to be charged with or given notice of any violation of, any applicable law, rule or regulation or

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Order, in each case, except for such violations as would not reasonably be expected to have a Diversa Material Adverse Effect. To the Knowledge of Diversa, no employee of Diversa is subject to any Order that may prohibit employees from engaging in or continuing any conduct, activity or practice relating to or contemplated by the Collaboration Agreement. To the Knowledge of Diversa, there is no proposed Order that, if issued or otherwise put into effect, (i) would have or would reasonably be expected to have a Diversa Material Adverse Effect or a material adverse effect on the ability of Diversa to comply with or perform any covenant or obligation under any of the Transaction Documents or (ii) may have the effect of preventing, delaying, making illegal or otherwise interfering with any of the transactions contemplated by the Transaction Documents.

Section 4.14. Tax Matters. (a) Each Tax Return required to be filed by Diversa and each of its Subsidiaries has been timely filed or, for those Tax Returns that have not been filed prior to the date hereof, will be timely filed when due. All such Tax Returns are, or shall be at the time of filing, true and complete in all material respects. There is no Proceeding pending or threatened against Diversa or its Subsidiaries with respect to any Taxes.

(b) Diversa and each of its Subsidiaries has paid (or has had paid on its behalf) or has withheld and remitted to the appropriate Taxing Authority, or, where payment is not yet due, has established (or has had established on its behalf and for its sole benefit and recourse) in accordance with generally accepted accounting principles an adequate accrual for all Taxes through the end of the last period for which Diversa and its Subsidiaries ordinarily record items on their respective books.

(c) The income and franchise Tax Returns of Diversa and its Subsidiaries through the Tax year ended December 31, 2001 have been examined and closed or are Returns with respect to which the applicable period for assessment under applicable law, after giving effect to extensions or waivers, has expired.

Section 4.15. Finders’ Fees. Except for Bear, Stearns & Co., whose fees will be paid by Diversa, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of Diversa or its Affiliates who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement.

ARTICLE 5

COVENANTS OF THE SYNGENTA PARTIES

The Syngenta Parties agree that:

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Section 5.01. Conduct of TMRI. From the date hereof until the Closing Date, each Syngenta Party shall, and shall cause its respective Affiliates to, conduct the Research Activities in the ordinary course consistent with past practice and shall use its reasonable efforts to preserve intact the Purchased Assets and relationships with third parties related to the Purchased Assets or the Research Activities. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except as disclosed on Schedule 5.01, each Syngenta Party will not, and will cause its Affiliates not to, (and will not, and will cause its Affiliates not to, agree or commit to):

(i) sell, lease, license or otherwise dispose of any Purchased Assets except in the ordinary course consistent with past practice; or

(ii) take any action that would make any representation or warranty of the Syngenta Parties hereunder inaccurate in any respect at, or as of any time prior to, the Closing Date.

Section 5.02. Nonsolicitation. Except as expressly provided in Section 9.05, the Syngenta Parties agree that during the period commencing on the date hereof and ending twelve months from the Closing Date, they shall not, and they shall cause their Affiliates not to, hire or solicit (or arrange for any third party intermediary to do the same), or receive or accept the performance of services by, any Transferred Employee or other employee of Diversa; provided that nothing in this Section 5.02 shall prevent a Syngenta Party or any Affiliate of any Syngenta Party from engaging in a general solicitation for employment published in a journal, newspaper or other communication of general communication or over the Internet that is not specifically directed at any Transferred Employee or other employee of Diversa (or from hiring or employing any Transferred Employee or other employee of Diversa who responds to such general solicitation without having been otherwise solicited by or on behalf of the Syngenta Parties or their Affiliates).

Section 5.03. Syngenta Agreement to Vote. The Syngenta Parties agree to cause their Affiliates (i) to vote any shares of Diversa Common Stock held by them in favor of the issuance of the Shares, the Warrant and the Warrant Shares pursuant to this Agreement at the Diversa Stockholder Meeting contemplated in Section 6.02, (ii) not to vote any shares of Diversa Common Stock held by them in favor of the approval of any action which would reasonably be expected to prevent, delay, postpone, impede, interfere with, frustrate the purposes of, or discourage the consummation of, the transactions contemplated by this Agreement and (iii) not to sell, assign, transfer, encumber or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of, any shares of Diversa Common Stock held by them, other than to any Affiliate. The foregoing provision will automatically terminate upon the earlier of the Closing and termination of this Agreement.

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Section 5.04. Non-assertion of Certain Intellectual Property Rights. The Syngenta Parties agree, on behalf of themselves and their Affiliates, not to assert any of the Intellectual Property Rights listed in Schedule 3.10(d) against Diversa or its Affiliates where Diversa seeks to exploit such Intellectual Property Rights solely outside the Syngenta Exclusive Field (as defined in the Collaboration Agreement) (it being understood that the Syngenta Parties make no representation or warranties regarding Diversa’s ability to exploit such rights and the Syngenta Parties will have no liability arising from such exploitation by Diversa or its Affiliates).

ARTICLE 6

COVENANTS OF DIVERSA

Section 6.01. Conduct of Business. From the date hereof until the Closing Date, Diversa shall, and shall cause its Affiliates to, conduct its business in the ordinary course consistent with past practice and shall use its reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and employees. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, Diversa will not, and will cause its Affiliates not to, (and will not, and will cause its Affiliates not to, agree or commit to):

(i) adopt or propose any change to its certificate of incorporation or bylaws (including the adoption of any certificate of designation for preferred stock);

(ii) merge or consolidate with any other Person or otherwise undertake a business combination or material restructuring transaction; provided that this clause (ii) shall be deemed not to prohibit any acquisition by Diversa structured as a merger of the acquired company into a wholly-owned subsidiary of Diversa, so long as the aggregate purchase price for all acquisitions under this clause (ii) and clause (iii) does not exceed $25,000,000;

(iii) undertake an acquisition transaction (other than one or more acquisitions such that the aggregate purchase price for all acquisitions under this clause (iii) and the proviso to clause (ii) does not exceed $25,000,000) or a transaction involving the sale, lease, license or disposition of all or substantially all of its assets;

(iv) issue any debt securities convertible or exchangeable into Diversa Common Stock or into other equity securities of Diversa;

(v) enter into any transaction, agreement or commitment that includes a term or provision that, directly or indirectly, has the effect of making such transaction, agreement or commitment contingent or

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conditional upon this Agreement being terminated or the consummation or performance of the transactions contemplated by this Agreement or any of the other Transaction Documents not occurring, or that otherwise impairs, prevents or materially delays (or would reasonably be expected to impair, prevent or materially delay) the consummation of the transactions contemplated hereby or by the other Transaction Documents;

(vi)    (1) take any action, directly or indirectly through intermediaries, to solicit, initiate or encourage any Alternative Proposal (as defined below) or (2) directly or indirectly through intermediaries, engage in negotiations or discussions with, or disclose or furnish any nonpublic information relating to, Diversa, any of its subsidiaries or their businesses or afford access to the properties, books or records of Diversa or any of its subsidiaries relating to Diversa, its subsidiaries or their businesses to, any person or entity with respect to, or in circumstances that Diversa reasonably judges could lead to, an Alternative Proposal (for purposes of this Section 6.01(vi)(1) and (2), “Alternative Proposal” means a proposal or offer with respect to or relating to any agreement, instrument, transaction or commitment of a type (or that, if entered into, would be of a type) referred to in Section 4.04(c) or 6.01(v)); or

(vii) take any action that would make any representation or warranty of Diversa hereunder inaccurate in any respect at, or as of any time prior to, the Closing Date.

Section 6.02. Stockholder Meeting; Obtaining Stockholder Approval. Diversa shall cause a meeting of its stockholders (the “Diversa Stockholder Meeting”) to be duly called and held as soon as reasonably practicable for the purpose of obtaining stockholder approval of the issuance of the Shares, the Warrant and the Warrant Shares pursuant to this Agreement. The Board of Directors shall recommend to the Diversa stockholders that they approve the issuance of the Shares, the Warrant and the Warrant Shares to the Syngenta Parties in connection with the transactions contemplated by the Transaction Documents. In connection with the Diversa Stockholder Meeting, Diversa shall (i) as soon as reasonably practicable after the date hereof prepare and file with the SEC, use reasonable efforts to have cleared by the SEC and thereafter mail to its stockholders as soon as reasonably practicable the Diversa Proxy Statement and all other proxy materials for such meeting, (ii) use reasonable efforts to obtain the necessary approvals of its stockholders for the issuance of the Shares, the Warrant and the Warrant Shares and (iii) otherwise comply with all laws, rules and regulations applicable to such meeting. The provisions of this Section 6.02 shall not apply so long as Diversa receives written confirmation, reasonably satisfactory to its counsel (a copy of which is furnished to the Syngenta Parties and is reasonably acceptable to their counsel) from the Nasdaq that no such approval is required under the Nasdaq Rules for the consummation of the transactions contemplated hereby.

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Section 6.03. Nasdaq Listing. Diversa shall use its reasonable efforts to cause the Shares and the Warrant Shares to be listed on the Nasdaq National Market at the Closing, subject to official notice of issuance.

Section 6.04. Removal of Legends. It is understood and agreed by Diversa that the restrictive legends and “stop transfer” instructions described in Section 3.13(e) will be removed at the time the Shares, the Warrant or the Warrant Shares, as applicable, are registered under the 1933 Act and sold pursuant to such registration, or are sold under Rule 144 under the 1933 Act (provided that Diversa shall cause such restrictive legends and “stop transfer” instructions to be promptly removed at the request of the Syngenta Parties in connection with sales in accordance with Rule 144 under the 1933 Act), or otherwise in connection with a transfer pursuant to an exemption from registration under the 1933 Act.

Section 6.05. Nonsolicitation. Diversa agrees that, except pursuant to the express terms of Article 9, during the period commencing on the date hereof and ending twelve months from the Closing Date, Diversa shall not, and it shall cause its Affiliates not to, hire or solicit (or arrange for any third party intermediary to do the same), or receive or accept the performance of services by, any employee that on the date hereof is an employee of any Syngenta Party or any of its Affiliates; provided that nothing in this Section 6.05 shall prevent Diversa or any Affiliate of Diversa from engaging in a general solicitation for employment published in a journal, newspaper or other communication of general communication or over the Internet that is not specifically directed at any employee of any Syngenta Party or any of its Affiliates (or from hiring or employing any employee who responds to such general solicitation without having been otherwise solicited by or on behalf of Diversa). The parties acknowledge and agree that Section 5.02 and this Section 6.05 shall supersede Section 6 of the Confidential Disclosure Agreement dated April 12, 2002, as amended, among Syngenta International AG, SPARTAG and Diversa unless and until such time as this Agreement shall have been terminated in accordance with Article 12, in which case Section 6 of the Confidential Disclosure Agreement shall be deemed to be in full force and effect.

Section 6.06. Trademarks and Tradenames. After the Closing, Diversa shall not use any of the Syngenta Trademarks and Tradenames without the prior written permission of the Syngenta Parties, except to the extent the use of such Trademarks and Tradenames has been previously approved by the Syngenta Parties in connection with a press release and Diversa uses such Trademarks and Tradenames solely to identify Syngenta as a collaboration partner.

Section 6.07. Office Space. If Diversa shall have additional space that it is not using and that it does not have plans to use, Diversa shall, at the Syngenta Parties’ request, cooperate in good faith with the Syngenta Parties to provide to Syngenta office space for a period of up to one year from the Closing Date at its San Diego, California offices for any TMRI Employee who does not become a

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Transferred Employee on reasonable commercial terms to be negotiated between the parties.

ARTICLE 7

COVENANTS OF DIVERSA AND THE SYNGENTA PARTIES

Diversa and the Syngenta Parties agree that:

Section 7.01. Reasonable Efforts; Further Assurance. (a) Subject to the terms and conditions of this Agreement, the Syngenta Parties and Diversa will use their reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable laws, rules and regulations to consummate the transactions contemplated by this Agreement. The Syngenta Parties and Diversa agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or desirable in order to consummate or implement expeditiously the transactions contemplated by this Agreement and to vest in Diversa good title to the Purchased Assets.

(b) Diversa and the Syngenta Parties shall use reasonable efforts to file, as soon as practicable after the date of this Agreement, all notices, reports and other documents required to be filed with any Governmental Body with respect to the transactions contemplated by the Transaction Documents, and to submit promptly any additional information requested by any such Governmental Body. Without limiting the generality of the foregoing, if required by applicable laws, rules and regulations, Diversa and the Syngenta Parties shall, promptly after the date of this Agreement, prepare and file the notifications, if any, required under the HSR Act, in connection with the transactions contemplated by this Agreement. Diversa and the Syngenta Parties shall respond as promptly as practicable to (i) any inquiries or requests received from the Federal Trade Commission or the Department of Justice for additional information or documentation and (ii) any inquiries or requests received from any state attorney general or other Governmental Body in connection with antitrust or related matters. Each of Diversa and the Syngenta Parties shall (i) give the other party prompt notice of the commencement of any Proceeding by or before any Governmental Body with respect to the transactions contemplated by the Transaction Documents, (ii) keep the other party informed as to the status of any such Proceeding, and (iii) subject to their obligations to comply with applicable laws, rules and regulations, promptly inform the other party of any communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Body regarding the transactions contemplated by the Transaction Documents. Diversa and the Syngenta Parties will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any

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Proceeding with respect to the transactions contemplated by the Transaction Documents under or relating to the HSR Act or any other federal or state antitrust or fair trade law. In addition, except as may be prohibited by the HSR Act or any Governmental Body or by any applicable law or regulation or except as may be requested by any Governmental Body, in connection with any Proceeding with respect to the transactions contemplated by the Transaction Documents under or relating to any other federal or state antitrust or fair trade law or any other similar Proceeding, each of Diversa and the Syngenta Parties agrees to permit authorized Representatives of the other party to be present at each meeting or conference with government representatives relating to any such Proceeding and to have access to and be consulted in connection with any document or proposal made or submitted to any Governmental Body in connection with any such Proceeding.

(c) Nothing in Section 7.01(b) will require either the Syngenta Parties or Diversa (i) to enter into any consent decree with respect to or otherwise accept any condition or restriction (A) seeking to restrain, prohibit or otherwise interfere with the ownership or operation by (1) Diversa or any of its Affiliates of all or any portion of the Purchased Assets or the business or assets of Diversa or any of its Affiliates, or (2) the Syngenta Parties or any of their Affiliates of all or any portion of the business or assets of the Syngenta Parties or any of their Affiliates, (B) seeking to compel (1) Diversa or any of its Affiliates to dispose of all or any portion of the Purchased Assets or of all or any portion of the assets of Diversa or any of its Affiliates or (2) the Syngenta Parties or any of their Affiliates to dispose of all or any portion of the assets of the Syngenta Parties or any of their Affiliates or (C) seeking to require divestiture by Diversa or any of its Affiliates of any Purchased Assets, or (ii) to license or otherwise make available, or cause any of its Affiliates to license or otherwise make available, to any Person, any technology, software, or other Intellectual Property Right.

(d) During the six months after Closing, the Syngenta Parties agree to make available to Diversa on a consulting basis the services of the TMRI bioinformatics group employees who transfer from TMRI to Syngenta Biotechnology Inc. (the “Bioinformatics Personnel”) to consult with Diversa on bioinformatics issues. These services will be limited to 10% of the time (at the Syngenta Parties’ expense) of such Bioinformatics Personnel each month during such six months. Diversa shall promptly reimburse the Syngenta Parties for the out of pocket costs authorized by the Syngenta Parties under normal Syngenta policies of such Bioinformatics Personnel for travel and related expenses requested by Diversa. During the six months after Closing, the Syngenta Parties will, at Diversa’s request, provide reasonable assistance to Diversa, at no cost to the Syngenta Parties, with respect to Diversa’s obtaining similar license agreements to those listed in Schedule 3.06 and excluded from the rights licensed to Diversa. The Syngenta Parties shall have no liability to Diversa or its Affiliates or employees for the services and assistance referenced above.

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Section 7.02. Diversa Pre-Closing Access to Information. From the date hereof until the Closing Date, the Syngenta Parties will (i) give Diversa and its Representatives reasonable access to the offices, properties, books and records of the Syngenta Parties to the extent relating to the Purchased Assets, the Research Activities, the Intellectual Property Licenses or the employees of the Syngenta Parties that provide services to the Research Activities (including the Transferred Employees), (ii) furnish to Diversa and its Representatives such financial and operating data and other information relating to the Purchased Assets, the Research Activities, the Intellectual Property Licenses or the employees of the Syngenta Parties that provide services to the Research Activities (including the Transferred Employees) as such Persons may reasonably request and (iii) instruct all Representatives of the Syngenta Parties to cooperate with Diversa in its reasonable investigation of the Purchased Assets, the Research Activities, the Intellectual Property Licenses or the employees of the Syngenta Parties that provide services to the Research Activities (including the Transferred Employees). Any investigation pursuant to this Section 7.02 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Syngenta Parties. Notwithstanding the foregoing, Diversa shall not have access to (i) personnel records of the Syngenta Parties relating to individual performance or evaluation records, medical histories or other information which in the Syngenta Parties’ good faith opinion is sensitive or the disclosure of which could subject the Syngenta Parties or their Affiliates to risk of liability or (ii) information which in the Syngenta Parties’ good faith opinion is of a competitively sensitive nature.

Section 7.03. Syngenta Pre-Closing Access to Information. From the date hereof until the Closing Date, Diversa will give the Syngenta Parties and their Representatives reasonable access to the offices, properties, books and records and personnel of Diversa as necessary to facilitate preparation by the parties in connection with the matters contemplated by the Collaboration Agreement or as appropriate in connection with preparing for and facilitating the transition of the Transferred Employees to employment by Diversa. Any access pursuant to this Section 7.03 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Diversa. Notwithstanding the foregoing, the Syngenta Parties shall not have access to (i) personnel records of Diversa relating to individual performance or evaluation records, medical histories or other information which in Diversa’s good faith opinion is sensitive or the disclosure of which could subject Diversa to risk of liability or (ii) information which in Diversa’s good faith opinion is of a competitively sensitive nature.

Section 7.04. Mutual Post-Closing Access to Information. On and after the Closing Date, each party hereto will afford promptly to the other party and its attorneys, accountants, advisors and other representatives reasonable access to its books of account, financial and other records (including accountant’s work papers), information, employees and auditors to the extent necessary or useful to such other party in connection with any audit, investigation, dispute or litigation

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or any other reasonable business purpose relating to the Purchased Assets, the Intellectual Property Licenses or the Transferred Employees or necessary to permit such other party to determine any matter relating to its rights and obligations hereunder; provided that any such access (i) shall not entitle a party to access information that the other party determines in good faith is of a competitively sensitive nature and (ii) shall not unreasonably interfere with the conduct of the business of the other party. The party seeking such access shall bear all of the out-of-pocket costs and expenses (including attorneys’ fees, but excluding reimbursement for general overhead, salaries and employee benefits) reasonably incurred in connection with the foregoing. The access provisions described in this Section 7.04 shall not apply to matters covered by the Collaboration Agreement, since such matters are dealt with by the access provisions therein.

Section 7.05. Confidentiality. Prior to the Closing Date and after any termination of this Agreement, each party hereto will, and will cause its Affiliates to, hold, and will use their reasonable efforts to cause their respective Representatives to hold, in confidence, unless compelled to disclose by judicial or administrative process or by other applicable laws, rules and regulations, all confidential documents and information concerning the other party (and its Affiliates) furnished to such party or its Affiliates or Representatives in connection with the transactions contemplated by the Transaction Documents, except to the extent that such information can be shown to have been (i) previously known on a nonconfidential basis by such party, (ii) in the public domain through no fault of such party or (iii) later lawfully acquired by such party from sources other than the other party; provided that such party may disclose such information to its Representatives in connection with the transactions contemplated by this Agreement so long as such Persons are informed by such party of the confidential nature of such information and are directed by such party to treat such information confidentially. Such party shall be responsible for any failure to treat such information confidentially by such Persons. The obligation of the parties to hold any such information in confidence shall be satisfied if they exercise the same care with respect to such information as they would take to preserve the confidentiality of their own similar information. If this Agreement is terminated, each of the parties will, and will cause its Affiliates to, and will use its reasonable efforts to cause its Representatives to, destroy or deliver to the other party, upon request, all documents and other materials, and all copies thereof, obtained by such party or its Affiliates or on their behalf from the other party in connection with the transactions contemplated by the Transaction Documents that are subject to such confidence.

Section 7.06. Novartis Stock Purchase Agreement. The parties hereby agree to amend the Novartis Stock Purchase Agreement by deleting in its entirety Section 6 thereof, effective as of the Closing.

Section 7.07. Certain Filings. The parties hereto shall cooperate with one another (i) in determining whether any action by or in respect of, or filing with,

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any Governmental Body is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any Contracts, in connection with the transactions contemplated by the Transaction Documents and (ii) in taking such actions or making any such filings, furnishing information required in connection therewith and seeking timely to obtain any such actions, consents, approvals or waivers.

Section 7.08. Public Announcements. The parties hereto shall consult and agree with each other before issuing any press release or making any public statement with respect to the transactions contemplated by the Transaction Documents and, except for any press releases and public statements the making of which may be required by applicable law or regulation or any listing agreement with any national securities exchange, will not issue any such press release or make any such public statement prior to such consultation.

Section 7.09. Notices of Certain Events. Each of the parties hereto shall promptly notify the other of:

(a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by the Transaction Documents;

(b) any notice or other communication from any Governmental Body in connection with the transactions contemplated by the Transaction Documents; and

(c) any actions, suits, claims, investigations or proceedings commenced or threatened relating to the Syngenta Parties, Diversa or any of their respective Affiliates, as the case may be, that, if pending on the date of this Agreement, would have been required to have been disclosed in order for the representations and warranties contained in Article 3 and Article 4 of this Agreement to be complete, true and accurate in all material respects or that relate to the consummation of the transactions contemplated by the Transaction Documents.

ARTICLE 8

TAX MATTERS

Section 8.01. Tax Cooperation; Allocation of Taxes. (a) Each party hereto agrees to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Research Activities and the Purchased Assets (including access to books and records) as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, the preparation for any audit by any Taxing Authority, and the prosecution or defense of any claim, suit or proceeding relating to any Tax. The

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parties hereto shall retain all books and records with respect to Taxes pertaining to the Purchased Assets for a period of at least six years following the Closing Date. On or after such period, each party shall provide the other with at least ten days prior written notice before destroying any such books and records, during which period the party receiving such notice can elect to take possession, at its own expense, of such books and records. The parties hereto shall cooperate with each other in the conduct of any audit or other proceeding relating to Taxes involving the Purchased Assets or the Research Activities.

(b)  All real property taxes, personal property taxes and similar ad valorem obligations levied with respect to the Purchased Assets for a taxable period which includes (but does not end on) the Closing Date (collectively, the “Apportioned Obligations”) shall be apportioned between the Syngenta Parties and Diversa based on the number of days of such taxable period included in the Pre-Closing Tax Period and the number of days of such taxable period after the Closing Date (the “Post-Closing Tax Period”). The Syngenta Parties shall be liable for the proportionate amount of such taxes that is attributable to the Pre-Closing Tax Period, and Diversa shall be liable for the proportionate amount of such taxes that is attributable to the Post-Closing Tax Period.

(c)  Apportioned Obligations shall be timely paid, and all applicable filings, reports and returns shall be filed, as provided by applicable law. The paying party shall be entitled to reimbursement from the non-paying party in accordance with Section 8.01. Upon payment of any such Apportioned Obligation, the paying party shall present a statement to the non-paying party setting forth the amount of reimbursement to which the paying party is entitled under Section 8.01 together with such supporting evidence as is reasonably necessary to calculate the amount to be reimbursed. The non-paying party shall make such reimbursement promptly but in no event later than 10 days after the presentation of such statement. Any payment not made within such time shall bear interest at a rate per annum equal to the Prime Rate as published in the Wall Street Journal, Eastern Edition, for each day until paid.

(d)  All excise, sales, use, value added, registration stamp, recording, documentary, conveyancing, franchise, property, transfer and similar Taxes, levies, charges and fees (collectively, “Transfer Taxes”) incurred in connection with the transactions contemplated by this Agreement shall be borne by the Syngenta Parties. The parties hereto shall cooperate with each other to minimize the Transfer Taxes attributable to the sale of the Purchased Assets, including by providing any necessary exemption certificates. Diversa shall (at no cost or further obligation to Diversa) take any steps reasonably requested by the Syngenta Parties to achieve that end (it being the expectation of the parties hereto that the appraised value of the Purchased Assets subject to such Transfer Taxes shall approximate TMRI’s net book value for such Purchased Assets).

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ARTICLE 9

EMPLOYEE BENEFITS

Section 9.01. Employees and Offers of Employment. (a) The parties hereto shall mutually agree upon the TMRI Employees listed on Schedule 9.01 (to whom offers are to be made by Diversa in accordance with Section 9.01(b)) as promptly as practicable, and in any event within 30 days of the date of this Agreement, and the parties hereto may mutually agree to modify Schedule 9.01 (it being agreed that the number of employees listed on Schedule 9.01 will be sufficient to allow Diversa to satisfy its obligations in Section 9.01(b)). Schedule 9.01 shall not include those individuals listed on Schedule 3.11(a) whose names are highlighted (unless otherwise mutually agreed by the parties hereto).

(b)  Prior to the Closing, Diversa shall use commercially reasonable efforts to make sufficient offers to the scientist personnel on Schedule 9.01 (who are reasonably acceptable to Diversa) to lead to 59 hires by Diversa on the offer terms set forth below (all such employees who accept such offer of employment and commence employment with Diversa as of the Closing Date being referred to herein as the “Transferred Employees”). Such offers of employment by Diversa shall be conditional on the Closing of the transactions contemplated by the Transaction Documents and shall become effective on the Closing Date (or, in the case of Transferred Employees who are on disability, workers compensation or leave of absence, as soon as they are removed from disability or workers compensation status or return from leave). All such offers of employment shall be made by Diversa at no less than the salary or hourly wages and the target bonus as set forth in Schedule 3.11(a). The Syngenta Parties shall provide reasonable cooperation (without the need for payment of any money or incurrence of any other financial obligation) to assist Diversa in satisfying its obligations under the first sentence of this Section 9.01(b), and shall not (without the prior written consent of Diversa), on or prior to Closing, make offers to more than 41 TMRI Employees for transfer to Affiliates of the Syngenta Parties.

(c)  In addition, prior to Closing, Diversa shall offer to employ the following personnel (in addition to those listed on Schedule 9.01), and the Syngenta Parties shall provide reasonable cooperation to Diversa (without the need for payment of any money or incurrence of any other financial obligation) to enable Diversa to recruit prior to the Closing Date such personnel: (i) up to thirteen TMRI Employees in general administrative and support functions; (ii) three TMRI Employees for engineering; (iii) the President of TMRI who shall be offered the position of Diversa’s R&D Head of Technology Development; (iv) up to eleven TMRI Employees for general recruiting for scientific positions; and (v) at least two TMRI Employees (one of whom shall be the head of the program) engaged in the Syngenta Parties’ fungal control program. All such offers shall be made at not less than the salary or wages and the target bonus as provided by TMRI to Diversa prior to the offer of employment by Diversa being made (and which shall be no less than the salary or wages and target bonus of such employees set forth on Schedule 3.11(a)). All such offers shall be made only with

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the Syngenta Parties’ prior consent, not to be unreasonably withheld. Upon acceptance of offers by such recruited employees, such employees will also become Transferred Employees.

(d)  The Syngenta Parties shall terminate employment of all Transferred Employees effective as of the Closing Date, except as expressly provided in Section 9.05.

(e)  The Syngenta Parties agree to pay to Diversa, within thirty (30) days after Closing, half of the annual base salary of up to eleven TMRI Employees hired by Diversa for general recruiting for scientific positions as set forth in Section 9.01(c)(iv); provided that this obligation shall apply only to those individuals offered positions by Diversa prior to Closing and who become Transferred Employees.

Section 9.02. Employee Benefits Generally. The parties hereto shall cooperate in ensuring that employee benefit coverage for Transferred Employees prior to Closing is coordinated with such coverage provided on and after the Closing. For the one-year period beginning on the Closing Date, Diversa shall provide each Transferred Employee who remains employed with Diversa during such one-year period, with employee compensation and benefits that are substantially comparable to the compensation and employee benefits made available to such Transferred Employees immediately prior to the Closing Date in aggregate value; provided that Diversa shall not be obligated to provide to any such Transferred Employee participation in any defined benefit plan but shall make available to such Transferred Employees participation in its 401(k) plan and in its employee stock option plan at levels comparable to similar level Diversa employees (recognizing, for purposes of determining such level for each Transferred Employee, the work experience, skills, length of service and other relevant factors relating to such Transferred Employee). The Syngenta Parties shall provide Diversa with appropriate information regarding the employee benefits of the Transferred Employees to enable Diversa to determine whether the compensation and employee benefits it is offering to Transferred Employees are substantially comparable to the compensation and employee benefits made available to such employees by the Syngenta Parties immediately prior to the Closing Date.

Section 9.03. Syngenta Parties’ Employee Benefit Plans. (a) Except as expressly set forth in this Article 9, the Syngenta Parties shall retain all liabilities and obligations in respect of Transferred Employees under its employee benefit plans and neither Diversa nor any of its Affiliates shall have any liability with respect thereto. No assets or liabilities of any employee benefit plan of any Syngenta Party shall be transferred to, or assumed by, Diversa or any of its Affiliates or to any employee benefit plan of Diversa or any of its Affiliates in connection with any of the transactions contemplated by the Transaction Documents. No Transferred Employee shall accrue any benefit under the

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Syngenta Parties’ employee benefit plans in respect of service with Diversa after the Closing Date.

(b)  The Syngenta Parties shall be responsible for medical expenses of all employees of the Syngenta Parties (including those employees who become Transferred Employees) provided that such expenses were incurred by such employees prior to the Closing Date regardless of whether payments are made after Closing. As of the Closing Date, any employee who is receiving benefits under the Syngenta Parties’ short-term disability program shall be deemed to be an employee of the Syngenta Parties until such time as such employee is no longer eligible for the Syngenta Parties’ short-term disability program. If at such time the employee is eligible for long-term disability benefits or disability retirement, the employee shall receive such benefits under the Syngenta Parties’ long-term disability program or pension plan.

Section 9.04. Diversa Benefit Plans. (a) Diversa shall be responsible for health and accident claims incurred on or after the Closing Date relating to Transferred Employees. With respect to each Transferred Employee, Diversa shall apply toward any deductible requirements and out-of-pocket maximum limits under its employee welfare benefit plans any amounts paid by each Transferred Employee under the Syngenta Parties’ welfare benefit plans during the current plan year.

(b)  Diversa shall recognize for purposes of participation, eligibility and vesting (but for vesting purposes, only in respect of vacation and severance benefits) under its employee benefit plans, the service of any Transferred Employee with the Syngenta Parties (or its predecessors) prior to the Closing Date.

(c)  Diversa shall, to the extent permitted by applicable laws and regulations, waive pre-existing condition requirements, evidence of insurability provisions, waiting period requirements or any similar provisions under any employee benefit plan or compensation arrangements maintained or sponsored by or contributed to by Diversa. To the extent that such employee benefit plans or compensation arrangements are provided through a contract with an insurance company or other third party, Diversa shall be deemed to have satisfied its obligation under this subsection if uses its reasonable best efforts to secure any relevant waivers from such insurance company or third party.

(d)  The Syngenta Parties shall be responsible for satisfying obligations under Section 601 et seq. of ERISA and Section 4980B of the Code, to provide continuation coverage to or with respect to any employee or other qualified beneficiary in accordance with applicable laws, rules and regulations with respect to any “qualifying event” occurring prior to the Closing Date. Diversa shall be responsible for satisfying obligations under Section 601 et seq. of ERISA and Section 4980B of the Code, to provide continuation coverage to or with respect to any Transferred Employee in accordance with applicable laws, rules and

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regulations with respect to any “qualifying event” which occurs on or after the Closing Date.

(e)  Diversa shall be responsible for all workers’ compensation benefits payable to Transferred Employees with respect to injuries to Transferred Employees occurring on or after the Closing Date.

(f)  Diversa shall indemnify, defend and hold Syngenta harmless from and against any Damages for severance liability suffered by Syngenta with respect to any TMRI Employee who does not become a Transferred Employee on the Closing and who, on or prior to the first anniversary of the Closing, becomes an employee of Diversa.

Section 9.05. Certain Transferred Employees. The parties recognize that certain Transferred Employees have existing stock appreciation rights with respect to American Depository Receipts of Novartis AG. In anticipation that such Transferred Employees may wish to remain on TMRI’s payroll for a limited period of time following the Closing Date, the parties agree that the employment of such Transferred Employees will be governed by the provisions of the Dual Employment Agreement between TMRI and Diversa dated as of the date hereof.

Section 9.06. Certain Liabilities. The Syngenta Parties shall be responsible for all accrued salary and hourly wages for all employees of the Syngenta Parties prior to the Closing Date, and Diversa shall be responsible for all accrued salary and hourly wages for all Transferred Employees arising on and after the Closing Date as a result of services provided by such employees to Diversa. The Syngenta Parties shall be responsible for all target bonuses to be paid to employees of the Syngenta Parties (other than the Transferred Employees) for the fiscal year in which the Closing occurs. With respect to a Transferred Employee, the Syngenta Parties shall pay in accordance with the terms of the applicable plans a pro rata portion of the target bonus for such fiscal year based on the number of days of service provided to the Syngenta Parties by such employee prior to (and including) the Closing Date. Diversa shall be obligated to pay to each Transferred Employee a pro rata portion of such fiscal year bonus (i) based on the number of days of service provided to Diversa by such employee after the Closing Date and (ii) based on the better (to such Transferred Employee) of (A) the target bonus applicable to such employee under TMRI’s bonus plan and (B) the bonus under the Diversa bonus plan applicable to such employee for such fiscal year.

Section 9.07. No Third Party Beneficiaries. No provision of this Article 9 shall create any third party beneficiary or other rights in any employee or former employee (including any beneficiary or dependent thereof) of the Syngenta Parties in respect of employment by or continued employment (or resumed employment) with either Diversa or any of its Affiliates and no provision of this Article 9 shall create any such rights in any such Persons in respect of any benefits that may be provided, directly or indirectly, under any employee benefit

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plan or any plan or arrangement which may be in effect or established by Diversa or any of its Affiliates.

ARTICLE 10

CONDITIONS TO CLOSING

Section 10.01. Conditions to Obligations of Diversa and Syngenta. The obligations of Diversa and the Syngenta Parties to consummate the Closing are subject to the satisfaction or waiver of the following conditions:

(a)  Any applicable waiting period under the HSR Act relating to the transactions contemplated hereby shall have expired or been terminated.

(b)  (i) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Closing, and (ii) there shall not be any Proceeding commenced or threatened to be commenced by a Governmental Body relating to any of the matters set forth in Section 7.01(c).

(c)  if approval by the stockholders of Diversa is required by the Nasdaq Rules, the issuance of the Shares, the Warrant and the Warrant Shares shall have been approved by the stockholders of Diversa.

Section 10.02. Conditions to Obligation of Diversa. The obligation of Diversa to consummate the Closing is subject to the satisfaction, or waiver by Diversa, of the following conditions:

(a)  (i) The Syngenta Parties shall have performed in all material respects all of their obligations hereunder required to be performed by them on or prior to the Closing Date, (ii) the representations and warranties of the Syngenta Parties contained in this Agreement and in any certificate or other writing delivered by the Syngenta Parties pursuant hereto shall be accurate in all respects as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such date (except, in each case, as to such representations and warranties made as of a specific date, which shall have been accurate in all respects as of such date), in each case subject to only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a TMRI Material Adverse Effect, and (iii) Diversa shall have received a certificate signed by the appropriate officers of the Syngenta Parties to the foregoing effect.

(b)  There shall not have been, since the date of this Agreement, any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have in the aggregate, a TMRI Material Adverse Effect.

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(c) Diversa shall have received all documents it may reasonably request to evidence transfer of title of any of the Purchased Assets to Diversa.

Section 10.03. Conditions to Obligation of the Syngenta Parties. The obligation of the Syngenta Parties to consummate the Closing is subject to the satisfaction, or waiver by the Syngenta Parties, of the following conditions:

(a) (i) Diversa shall have performed in all material respects all of its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Diversa contained in this Agreement and in any certificate or other writing delivered by Diversa pursuant hereto shall be accurate in all respects as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such date (except, in each case, as to such representations and warranties made as of a specific date, which shall have been accurate in all respects as of such date), (A) in each case (other than Sections 4.04(c), 4.05, 4.06 (as to numbers of options, warrants or other securities of Diversa other than Diversa Common Stock) and 4.07) subject to only such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Diversa Material Adverse Effect, and (B) in the case of Section 4.06 as to numbers of options, warrants or other securities of Diversa other than Diversa Common Stock, subject to only such exceptions as would not exceed 5% in the aggregate from such numbers of options, warrants or other securities of Diversa other than Diversa Common Stock reflected in Section 4.06, and (iii) the Syngenta Parties shall have received a certificate signed by the appropriate officers of Diversa to the foregoing effect.

(b) The Shares and the Warrant Shares shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance.

(c) There shall not have been, since the date of this Agreement, any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, in the aggregate, a Diversa Material Adverse Effect.

ARTICLE 11

SURVIVAL; INDEMNIFICATION

Section 11.01. Survival. The representations and warranties of the Syngenta Parties contained in Article 3 of this Agreement and the representations and warranties of Diversa contained in Article 4 of this Agreement shall survive for a period of 18 months after the Closing. Notwithstanding the preceding sentence, any representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time. The covenants and

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agreements of the parties contained in this Agreement shall survive until the expiration of the applicable statute of limitations (unless a specified period is set forth in this Agreement with respect to any such covenant or agreement, in which case such specified period will control with respect to such covenant or agreement).

Section 11.02. Indemnification. (a) Each Syngenta Party shall indemnify and hold harmless Diversa and its Affiliates (collectively, the “Diversa Indemnitees”) from and against any Damages incurred or suffered, directly or indirectly, by the Diversa Indemnitees arising out of or resulting from:

(i) any inaccuracy in any representation or warranty set forth in Article 3 of this Agreement (disregarding any “Material Adverse Effect” or other materiality qualifier contained in such representation or warranty);

(ii) any inaccuracy in any representation or warranty set forth in Article 3 of this Agreement as if such representation or warranty were made on and as of the Closing Date (disregarding any “Material Adverse Effect” or other materiality qualifier contained in such representation or warranty);

(iii) any breach or failure to comply with any covenant or agreement made or to be performed by the Syngenta Parties pursuant to this Agreement;

(iv) any Liability arising out of the Syngenta Parties’ failure to comply with any bulk transfer or bulk sales laws or regulations in connection with the transactions contemplated by the Transaction Documents;

(v) any Excluded Liability (other than (for purposes of this parenthetical, ignoring Section 3.07) any Liability arising from any matter that is covered or dealt with in clauses (i) through (iii) above, including by virtue of any applicable exception, qualifier, disclosed item, deductible or cap); or

(vi) any Liability arising under the WARN Act and/or any similar state law due to any termination and/or layoff of TMRI Employees by the Syngenta Parties.

(b) The Syngenta Parties shall not be liable for any Damages pursuant to clauses (i) or (ii) of Section 11.02(a) until the aggregate amount of Damages incurred or suffered by the Diversa Indemnitees under clauses (i) and (ii) exceeds $1,000,000, and then only to the extent of such excess, and the Syngenta Parties’ maximum liability for all Damages pursuant to clauses (i) and (ii) of Section 11.02(a) shall not exceed $15,000,000. The limitations of this Section 11.02(b)

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shall not apply to (x) cases of fraud or willful misrepresentation or (y) clauses (iii) through (vi) of Section 11.02(a).

(c) Diversa shall indemnify and hold harmless the Syngenta Parties and their Affiliates (collectively, the “Syngenta Party Indemnitees”) from and against any Damages incurred or suffered, directly or indirectly, by the Syngenta Party Indemnitees arising out of or resulting from:

(i) any inaccuracy in any representation or warranty set forth in Article 4 of this Agreement (disregarding any “Material Adverse Effect” or other materiality qualifier contained in such representation or warranty);

(ii) any inaccuracy in any representation or warranty set forth in Article 4 of this Agreement as if such representation or warranty were made on and as of the Closing Date (disregarding any “Material Adverse Effect” or other materiality qualifier contained in such representation or warranty);

(iii) any breach or failure to comply with any covenant or agreement made or to be performed by Diversa pursuant to this Agreement; and

(iv) any Assumed Liability.

(d) Diversa shall not be liable for any Damages pursuant to clauses (i) or (ii) of Section 11.02(c) until the aggregate amount of Damages incurred or suffered by the Syngenta Party Indemnitees under clauses (i) and (ii) exceeds $1,000,000, and then only to the extent of such excess, and Diversa’s maximum liability for all Damages pursuant to clauses (i) and (ii) of Section 11.02(c) shall not exceed $15,000,000. The limitations of this Section 11.02(d) shall not apply to (x) fraud or willful misrepresentation or (y) clauses (iii) and (iv) of Section 11.02(c).

Section 11.03. Procedures. (a) The party seeking indemnification under Section 11.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim or the commencement of any Proceeding in respect of which indemnity may be sought under Section 11.02 and will provide the Indemnifying Party such information with respect thereto that the Indemnifying may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.

(b) The Indemnifying Party shall be entitled to participate in the defense of any claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Article 11, shall be entitled to control and appoint

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lead counsel for such defense, in each case at its expense, by giving notice to the Indemnified Party within 30 days of obtaining notice under Section 11.03(b). Otherwise, control will be by the Indemnified Party at the expense of the Indemnifying Party.

(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. In such case, the fees and expenses of such separate counsel shall be paid by the Indemnified Party.

(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.

Section 11.04. Calculation of Damages. (a) The amount of any Damages payable under Section 11.02 by the Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person (other than the Indemnifying Party). If, subsequent to an indemnification payment by the Indemnifying Party, the Indemnified Party receives any amounts under applicable insurance policies or from any other Person for any Damages, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

(b) Except with respect to fraud or willful misrepresentation, the Indemnifying Party shall not be liable under Section 11.02 for any (1) consequential or punitive Damages or (2) Damages for lost profits.

Section 11.05. Assignment of Claims. If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Damages pursuant to Section 11.02 and the Indemnified Party could have recovered all or a part of such Damages from a third party (a “Potential Contributor”) based on the underlying Claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment; provided that the Indemnified Party shall not be

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required to assign any right to proceed against a Potential Contributor if the Indemnified Party determines in its reasonable discretion that such assignment would be materially detrimental to its reputation or future business prospects.

Section 11.06. Right of Set-Off. Diversa and the Syngenta Parties hereby agree that a party hereto may set-off any payment obligation or amount that it (or its Affiliate) owes to another party hereto (under any Transaction Document or otherwise) against any payment obligation or amount owed by such other party hereto to it (or its Affiliates) pursuant to and in accordance with this Article 11; it being understood that that no such amounts may be set-off until the claim arising under this Article 11 has been agreed or determined by a court of competent jurisdiction. For purposes of the foregoing, Damages incurred by a party or its Affiliate will be deemed to be incurred by the entity seeking to invoke the set-off without the need specifically to prove which entity incurred the Damages (so that mutuality for set-off purposes will be deemed satisfied). All amounts paid with respect to indemnity claims under this Agreement shall be treated by the parties hereto for all Tax purposes as purchase price adjustments, unless such payments are required to be treated differently by applicable laws, rules and regulations.

Section 11.07. Exclusivity. After the Closing, and except for claims based on fraud or willful misrepresentation, Section 11.02 will provide the exclusive remedy for any claim arising out of this Agreement or the transactions contemplated hereby; provided that this exclusive remedy for Damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Agreement or any other Transaction Document. For the avoidance of doubt, the provisions of Article 11 apply only to this Agreement, and do not apply with respect to the respective rights and obligations of the parties under the other Transaction Documents.

ARTICLE 12

TERMINATION

Section 12.01. Grounds for Termination. This Agreement may be terminated at any time prior to the Closing:

(a) by mutual written agreement of the Syngenta Parties and Diversa;

(b) by either the Syngenta Parties or Diversa if the Closing shall not have been consummated on or before the date that is six months after the date of this Agreement (the “Outside Date”); provided that the Outside Date shall be extended for a single additional period of time not to exceed four months if all other conditions to closing under Article 10 are satisfied or capable of then being satisfied and the sole reason that Closing has not occurred by the Outside Date is that the applicable waiting period

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under the HSR Act relating to the transactions contemplated hereby shall not have expired or been terminated on or before such date;

(c) by either the Syngenta Parties or Diversa if consummation of the transactions contemplated hereby would violate any final, nonappealable order, decree, injunction or judgment of any U.S. Governmental Body having competent jurisdiction;

(d) by Diversa, if the representations or warranties contained in Article 3 of this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 10.02(a)(ii) would not be satisfied as of the time such representation and warranty shall have become inaccurate (assuming the Closing Date were as of such time); provided, however, that if an inaccuracy in any representation or warranty contained in Article 3 is curable by the Syngenta Parties and the Syngenta Parties are continuing to exercise reasonable efforts to cure such inaccuracy, then Diversa may not terminate this Agreement under this Section 12.01(d) on account of such inaccuracy;

(e) by the Syngenta Parties, if the representations or warranties contained in Article 4 of this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 10.03(a)(ii) would not be satisfied as of the time such representation and warranty shall have become inaccurate (assuming the Closing Date were as of such time); provided, however, that if an inaccuracy in any representation or warranty contained in Article 4 is curable by Diversa and Diversa is continuing to exercise reasonable efforts to cure such inaccuracy, then the Syngenta Parties may not terminate this Agreement under this Section 12.01(e) on account of such inaccuracy; or

(f) if approval of the transactions contemplated hereby by Diversa’s stockholders is required by the Nasdaq Rules, then by either theSyngenta Parties or Diversa if this Agreement shall not have been approved and adopted at the Diversa Stockholder Meeting (orany adjournment thereof).

Section 12.02. Effect of Termination. The party desiring to terminate this Agreement pursuant to Section 12.01 shall give written notice of such termination to the other party, with such notice identifying the Section of 12.01 upon which the terminating party is relying and the facts and circumstances giving rise to the right of such party to terminate this Agreement. If this Agreement is terminated as permitted by Section 12.01, such termination shall be without liability of any party (or any stockholder, director, officer, employee, agent, consultant or

47

representative of such party) to the other party to this Agreement; provided that if such termination shall result from the willful or intentional (i) failure of a party to fulfill a condition to the performance of the obligations of the other party, or (ii) breach by a party hereto of any representation or warranty or covenant contained herein, such party shall be fully liable for any and all Damages incurred or suffered by the other party as a result of such failure or breach. The provisions of Section 7.05, 13.03, 13.05, 13.06 and 13.07 shall survive any termination hereof pursuant to Section 12.01.

ARTICLE 13

MISCELLANEOUS

Section 13.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given,

if to Diversa, to:

Diversa Corporation

4955 Directors Place

San Diego, California 92121

Attention: Karin Eastham

Fax: 858-526-5605

with a copy to:

Cooley Godward LLP

4401 Eastgate Mall

San Diego, California 92121

Attention: Carl R. Sanchez, Esq.

Fax: 858-550-6420

if to the Syngenta Parties, to:

Syngenta Participations AG

Schwarzwaldallee 215

CH-4002 Basel

Switzerland Attention: President

Fax: (41) 61-323-7571

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with a copy to:

Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Attention: Louis Goldberg, Esq.

Fax: (212) 450-3800

All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

Section 13.02. Amendments and Waivers. (a) Any provision of this Agreement (or any Exhibit or Schedule hereto) may only be amended or waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.

(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

Section 13.03. Expenses. Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

Section 13.04. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto, except that (i) Diversa may transfer or assign, in whole or from time to time in part, to (A) one or more of its Affiliates, (B) to any Person who acquires all or substantially all of the assets of Diversa, or (C) to any Person who acquires 50% or more of the outstanding voting power of Diversa (whether by tender offer, stock purchase, merger or other business combination), the right to purchase all or a portion of the Purchased Assets, but no such transfer or assignment will relieve Diversa of its obligations hereunder and (ii) the Syngenta Parties may transfer or assign, in whole or from time to time in part, to one or more of their Affiliates (so long as such Affiliate is an “accredited investor” as defined in Rule 501(a) of the 1933 Act), the right to receive all or a portion of the Shares or the Warrant, but no such transfer or assignment will relieve the Syngenta Parties of their obligations hereunder.

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Section 13.05. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York, as applied to contracts to be performed fully within such state.

Section 13.06. Jurisdiction. Except as otherwise expressly provided in this Agreement, the parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the United States District Court for the Southern District of New York or any New York State court sitting in New York City, provided that one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 13.01 shall be deemed effective service of process on such party.

Section 13.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 13.08. Counterparts; Third Party Beneficiaries. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party hereto. No provision of this Agreement is intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.

Section 13.09. Entire Agreement. This Agreement and each of the other Transaction Documents constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement. There are no oral or written agreements, representations or warranties between the parties hereto relating to the subject matter hereof except as expressly set forth in the Transaction Documents.

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Section 13.10. Bulk Sales Laws. Each party hereto hereby waives compliance by the Syngenta Parties with the provisions of any “bulk sales,” “bulk transfer” or similar laws or regulations.

Section 13.11. Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.

Section 13.12. Interpretation. Unless the context otherwise requires, (i) “or” is disjunctive but not necessarily exclusive, (ii) “will” shall be deemed to have the same meaning as the word “shall” and (iii) words in the singular include the plural and vice versa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not so followed. All references to “$” or dollar amounts are to lawful currency of the United States of America, unless otherwise expressly stated.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

SYNGENTA PARTICIPATIONS AG
By:	/s/    Adrian C. Dubock
	Name: Adrian C. Dubock
	Title:   Head: Mergers &             Acquisitions, Ventures and             Licensing

By:	/s/    Marian T. Flattery
	Name: Marian T. Flattery
	Title:   Head of Global Intellectual             Property

TORREY MESA RESEARCH INSTITUTE
By:	/s/    Adrian C. Dubock
	Name: Adrian C. Dubock
	Title:   Attorney in fact

DIVERSA CORPORATION
By:	/s/    Jay M. Short
	Name: Jay M. Short
	Title:   CEO

EXHIBIT B

ASSIGNMENT AND ASSUMPTION AGREEMENT

ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [  ] between Torrey Mesa Research Institute, a Delaware corporation (“TMRI”) and Diversa Corporation, a Delaware corporation (“Diversa”).

W I T N E S S E T H :

WHEREAS, Diversa, TMRI and Syngenta Participations AG (“SPARTAG”) have concurrently herewith, among other things, consummated the purchase by Diversa of the Purchased Assets pursuant to the terms and conditions of the Transaction Agreement dated as of December 3, 2002 among Diversa, TMRI and SPARTAG (the “Transaction Agreement”; terms defined in the Transaction Agreement and not otherwise defined herein being used herein as therein defined);

WHEREAS, pursuant to the Transaction Agreement, Diversa has agreed to assume certain liabilities and obligations of TMRI and its Affiliates with respect to the Purchased Assets or the Research Activities;

NOW, THEREFORE, in consideration of the sale of the Purchased Assets and in accordance with the terms of the Transaction Agreement, Diversa and TMRI agree as follows:

1. (a) TMRI does hereby sell, transfer, assign and deliver (on a “where is” basis) to Diversa, good and valid title to the Purchased Assets; provided that no sale, transfer, assignment or delivery shall be made of any Purchased Asset if an attempted sale, assignment, transfer or delivery, without the consent of a third party, would constitute a breach or other contravention with respect to the Purchased Assets or in any way adversely affect the rights of Diversa thereunder.

(b) Diversa does hereby accept good and valid title to all of the Purchased Assets and Diversa hereby assumes and agrees to pay, perform and discharge promptly and fully when due all of the Assumed Liabilities and to perform all of the obligations to be performed under the Contracts, except to the extent obligations or liabilities thereunder constitute Excluded Liabilities.

2. This Agreement shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law rules of such state.

3. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

TORREY MESA RESEARCH INSTITUTE
By:
	Name:
	Title:

DIVERSA CORPORATION
By:
	Name:
	Title:

2

EX-2.2

Exhibit 2.2

STOCKHOLDERS AGREEMENT

AGREEMENT, dated as of December 3, 2002 among Syngenta Participations AG, a corporation organized under the laws of Switzerland (“SPARTAG”), Torrey Mesa Research Institute, a Delaware corporation (“TMRI”, and together with SPARTAG, the “Syngenta Parties”), and each of the stockholders of Diversa Corporation, a Delaware corporation (the “Company”) set forth under the caption “Diversa Stockholders” on the signature pages hereto (each, a “Stockholder”, and collectively, the “Stockholders”).

WHEREAS, in order to induce the Syngenta Parties to enter into the Transaction Agreement, dated as of the date hereof (the “Transaction Agreement”), with the Company and the other Transaction Documents, the Syngenta Parties have requested each Stockholder, and each Stockholder has agreed, to enter into this Agreement with respect to all shares of common stock, par value $0.001 per share, of the Company that such Stockholder beneficially owns (the “Subject Shares”). Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the Transaction Agreement.

WHEREAS, pursuant to the Transaction Agreement, the Company has agreed to issue (the “Issuance”) to the Syngenta Parties (or their designated Affiliates) the Shares and the Warrant as well as the Warrant Shares issuable upon exercise of the Warrant.

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE 1

GRANT OF PROXY; VOTING AGREEMENT

Section 1.01. Voting Agreement. Each of the Stockholders hereby agrees to vote all Subject Shares that such Stockholder is entitled to vote at the time of any vote to approve the Issuance at any meeting of the stockholders of the Company, and at any adjournment thereof, at which the Issuance is submitted for the consideration and vote of the stockholders of the Company (the “Diversa Stockholders Meeting”). Each of the Stockholders hereby agrees that it will not vote any Subject Shares in favor of the approval of any action which would reasonably be expected to prevent, delay, postpone, impede, interfere with, frustrate the purposes of, or discourage the consummation of, the transactions contemplated by the Transaction Agreement.

Section 1.02. Irrevocable Proxy. Each of the Stockholders hereby revokes any and all previous proxies granted with respect to such Stockholder’s Subject Shares. By entering into this Agreement, each of the Stockholders hereby grants a proxy appointing SPARTAG as such Stockholder’s attorney-in-fact and

proxy, with full power of substitution, for and in such Stockholder’s name, to vote for or consent to (by executing a written consent with respect thereto) the Issuance and any related matter coming up at the Diversa Stockholders Meeting (including without limitation to vote on any adjournment of such meeting). Subject to Section 1.01, the Stockholders shall be entitled to vote the Subject Shares on all other matters. The proxy granted by each of the Stockholders pursuant to this Article 1 is irrevocable during the term of this Agreement and is granted in consideration of the Syngenta Parties entering into this Agreement and the Transaction Agreement and incurring certain related fees and expenses. The proxy granted by each of the Stockholders shall be revoked upon termination of this Agreement in accordance with its terms.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS

Each of the Stockholders, severally as to itself, himself or herself, represents and warrants to the Syngenta Parties that:

Section 2.01. Corporation Authorization. (a) If such Stockholder is not an individual, the execution, delivery and performance by such Stockholder of this Agreement and the consummation by such Stockholder of the transactions contemplated hereby are within the corporate or similar powers of such Stockholder and have been duly authorized by all necessary corporate or similar action. This Agreement constitutes a valid and binding Agreement of such Stockholder.

(b) If such Stockholder is a married individual and the Subject Shares set forth on Exhibit A hereto opposite such Stockholder’s name constitute community property under applicable laws, this Agreement has been duly authorized, executed and delivered by, and constitutes the valid and binding agreement of, such Stockholder’s spouse. If this Agreement is being executed in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into and perform this Agreement.

Section 2.02. Non-Contravention. The execution, delivery and performance by such Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) if such Stockholder is not an individual, violate the certificate of incorporation or bylaws (or other organizational documents) of such Stockholder, (ii) violate any applicable law, rule, regulation, judgment, injunction, order or decree, (iii) require any consent or other action by any Person under, constitute a default under any provision of any agreement or other instrument binding on such Stockholder or (iv) result in the imposition of any Lien (other than (A) the agreement by such Stockholder to vote its Subject Shares for the Issuance and (B) the irrevocable proxy granted pursuant to Section 1.02) on any Subject Shares of such Stockholder.

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Section 2.03. Ownership of Subject Shares. Such Stockholder is the record and beneficial owner of the Subject Shares set forth beside its, his or her name on Exhibit A hereto, free and clear of any restriction on the right to vote such Subject Shares. None of such Subject Shares is subject to any voting trust or other agreement or arrangement with respect to the voting of such Subject Shares.

Section 2.04. Total Subject Shares. Except for the Subject Shares set forth beside its, his or her name on Exhibit A hereto, such Stockholder does not beneficially own any shares of capital stock or voting securities of the Company.

Section 2.05. Finder’s Fees. No Syngenta Party (or its Affiliates) is or will be responsible to pay any fee or commission to any investment banker, broker, finder or other intermediary in respect of this Agreement based upon any arrangement or agreement made by or on behalf of such Stockholder.

Section 2.06. Reliance by the Syngenta Parties. Such Stockholder understands and acknowledges that the Syngenta Parties are entering into the Transaction Agreement and the other Transaction Documents in reliance upon such Stockholder’s execution, delivery and performance of this Agreement.

ARTICLE 3

COVENANTS OF THE STOCKHOLDERS

Each of the Stockholders hereby, severally as to itself, himself or herself, covenants and agrees that:

Section 3.01. No Interference; Transfers. Except pursuant to the terms of this Agreement, such Stockholder shall not, without the prior written consent of the Syngenta Parties, directly or indirectly, (i) grant any proxies or enter into any voting trust or other agreement or arrangement with respect to the voting of any Subject Shares, (ii) take any action that would or is reasonably likely to (A) make any representation or warranty contained herein untrue or incorrect in any material respect or (B) have the effect in any material respect of preventing such Stockholder from performing its obligations under this Agreement, or (iii) sell, assign, transfer, encumber or otherwise dispose of, or enter into any contract, option or other arrangement or understanding (each, a “Transfer”) with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of, any Subject Shares during the term of this Agreement, unless the transferee in such Transfer agrees in writing to be bound by the terms of this Agreement and executes a counterpart to this Agreement making such transferee bound hereby.

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ARTICLE 4

MISCELLANEOUS

Section 4.01. Further Assurances. The parties hereto agree that the terms of this Agreement will apply to any written consent in lieu of the Diversa Stockholders Meeting. Each Stockholder will execute and deliver, or cause to be executed and delivered, (i) any further documents and instruments related to, or required to effect the provisions of this Agreement in connection with, any such written consent in lieu of the Diversa Stockholders Meeting and (B) any form of proxy required at the Diversa Stockholders Meeting to effect the provisions of Section 1.02.

Section 4.02. Amendments; Termination. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is to be effective. This Agreement shall terminate upon the earlier of (i) the completion of the Closing and (ii) the termination of the Transaction Agreement in accordance with its terms; provided that this Article 4 shall survive any such termination.

Section 4.03. Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

Section 4.04. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 4.05. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware (without regard to conflicts of laws principles).

Section 4.06. Jurisdiction. Except as otherwise expressly provided in this Agreement, the parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the Chancery Court of the State of Delaware (or other appropriate state court in the State of Delaware) or the Federal courts located in the State of Delaware, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an

4

inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

Section 4.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 4.08. Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

Section 4.09. Severability. If any term, provision or covenant of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions and covenants of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

Section 4.10. Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof in addition to any other remedy to which they are entitled at law or in equity.

5

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

SYNGENTA PARTICIPATIONS AG
By:	/s/ Adrian C. Dubock
	Name:	Adrian C. Dubock
	Title:	Head: Mergers & Acquisitions, Ventures and Licensing
By:	/s/ Marian T. Flattery
	Name:	Marian T. Flattery
	Title:	Head of Global Intellectual Property
TORREY MESA RESEARCH INSTITUTE
By:	/s/ Adrian C. Dubock
	Name:	Adrian C. Dubock
	Title:	Attorney in fact

(additional signature pages follow)

Diversa Stockholders

HEALTHCARE VENTURES III, L.P.
By:
	Its:	General Partner
	By:	/s/ Jeffrey Steinberg
	Name:	Jeffrey Steinberg
	Title:	Administrative Partner of HealthCare Partners III, L.P.
		The General Partner of HealthCare Ventures, III, L.P.

HEALTHCARE VENTURES IV, L.P.
By:
	Its:	General Partner
	By:	/s/ Jeffrey Steinberg
	Name:	Jeffrey Steinberg
	Title:	Administrative Partner of HealthCare Partners IV, L.P.
		The General Partner of HealthCare Ventures, IV, L.P.

HEALTHCARE VENTURES V, L.P.
By:
	Its:	General Partner
	By:	/s/ Jeffrey Steinberg
	Name:	Administrative Partner of HealthCare Partners V, L.P.
	Title:	The General Partner of HealthCare
		Ventures V, L.P.

(additional signature pages follow)

Diversa Stockholders (continued)

HEALTHCARE VENTURES VI, L.P.
By:
	Its:	General Partner
	By:	/s/ Jeffrey Steinberg
	Name:	Jeffrey Steinberg
	Title:	Administrative Partner of HealthCare Partners VI, L.P.
		The General Partner of HealthCare Ventures VI, L.P.

RHO MANAGEMENT TRUST II
By:	Rho Capital Partners, Inc.
	Its:	Investment Advisor
	By:	/s/ Joshua Ruch
	Name:	Joshua Ruch
	Title:	CEO

RHO MANAGEMENT PARTNERS L.P.
By:	Atlas Capital Corp.
	Its:	General Partner
	By:	/s/ Joshua Ruch
	Name:	Joshua Ruch
	Title:	President

(additional signature page follows)

Diversa Stockholders (continued)

/s/ Jay M. Short     

Jay M. Short, Ph.D.         

/s/ Melvin I. Simon     

Melvin I. Simon, Ph.D.         

/s/ Donald D. Johnston     

Donald D. Johnston         

/s/ Wayne T. Hockmeyer     

Wayne T. Hockmeyer, Ph.D.        

/s/ Peter Johnson     

Peter Johnson         

/s/ William H. Baum     

William H. Baum              

/s/ Karin Eastham     

Karin Eastham              

/s/ R. Patrick Simms     

R. Patrick Simms              

/s/ Carolyn A. Erickson     

R. Carolyn A. Erickson              

Exhibit A

Subject Shares

Stockholder	Class of Stock	Number of Shares Owned
HealthCare Ventures III, L.P.	Common Stock	3,231,679
HealthCare Ventures IV, L.P.	Common Stock	949,929
HealthCare Ventures V, L.P.	Common Stock	1,677,658
HealthCare Ventures VI, L.P.	Common Stock	638,500
Rho Management Trust II	Common Stock	1,634,230
Rho Management Partners L.P.	Common Stock	47,931
Jay M. Short, Ph.D.	Common Stock	415,670
Melvin I. Simon, Ph.D.	Common Stock	259,513
Donald D. Johnston	Common Stock	650,632
Wayne T. Hockmeyer, Ph.D.	Common Stock	10,000
Peter Johnson	Common Stock	5,000
William H. Baum	Common Stock	158,536
Karin Eastham	Common Stock	46,539
R. Patrick Simms	Common Stock	79,719
Carolyn A. Erickson	Common Stock	1,151

EX-4.5

EXHIBIT 4.5

DIVERSA CORPORATION

WARRANT FOR THE PURCHASE OF SHARES OF

COMMON STOCK OF DIVERSA CORPORATION

No.: Syngenta-1 Warrant to Purchase               [        ] Shares

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.

FOR VALUE RECEIVED, DIVERSA CORPORATION, a Delaware corporation (the “Company”), hereby certifies that SYNGENTA PARTICIPATIONS AG, its successor or permitted assigns (the “Holder”), is entitled, subject to the provisions of this Warrant, to purchase from the Company, at the times specified herein, [        ] fully paid and non-assessable shares of Common Stock of the Company, par value $.001 per share (the “Common Stock”), at a purchase price per share equal to the Exercise Price (as hereinafter defined). The number of shares of Common Stock to be received upon the exercise of this Warrant and the price to be paid for a share of Common Stock are subject to adjustment from time to time as hereinafter set forth.

1.    Definitions. (a) The following terms, as used herein, have the following meanings:

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person.

“Common Stock” means the Common Stock, par value $.001 per share, of the Company.

“Exercise Price” means $22 per Warrant Share, such Exercise Price to be adjusted from time to time as provided herein.

“Expiration Date” means the fifteenth anniversary of the Closing Date at 5:00 p.m. New York City time.

“Person” means an individual, partnership, corporation, trust, joint stock company, association, joint venture, or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Principal Holder” means the original Holder of this Warrant on the date of issue, or if such original Holder so elects, any transferee pursuant to the

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provisions of this Agreement of all or any portion of this Warrant whom such original Holder shall have designated by written notice to the Company as the successor Principal Holder. Any successor Principal Holder designated pursuant to the immediately preceding sentence shall also have the right upon any subsequent transfer pursuant to the provisions of this Warrant to designate a successor Principal Holder in the manner described above.

“Transaction Agreement” means the Transaction Agreement dated as of December 3, 2002 among the Company, the Holder and Torrey Mesa Research Institute, a Delaware corporation.

“Warrant Shares” means the shares of Common Stock deliverable upon exercise of this Warrant, as adjusted from time to time.

(b)    Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Transaction Agreement.

2. Exercise of Warrant.

(a)    The Holder is entitled to exercise this Warrant in whole or in part at any time, or from time to time, commencing on the fifth anniversary of the Closing Date and ending on the Expiration Date or, if any such day is not a Business Day, then on the next succeeding day that shall be a Business Day. To exercise this Warrant, the Holder shall execute and deliver to the Company a Warrant Exercise Notice substantially in the form annexed hereto. Subject to paragraph 2(e) below, no earlier than ten days after delivery of the Warrant Exercise Notice, the Holder shall deliver to the Company this Warrant Certificate, including the Warrant Exercise Subscription Form forming a part hereof duly executed by the Holder, together with payment of the applicable Exercise Price. At the close of business on the date of such delivery and payment, the Holder shall be deemed to be the holder of record of the Warrant Shares subject to such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder.

(b)    The Exercise Price may be paid in cash or by certified or official bank check or bank cashier’s check payable to the order of the Company or by any combination of such cash or check. The Company shall pay any and all documentary, stamp or similar issue or transfer taxes payable in respect of the issue or delivery of the Warrant Shares; provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of the Warrant Shares in a name other than that of the then Holder of this Warrant.

(c)    If the Holder exercises this Warrant in part, this Warrant Certificate shall be surrendered by the Holder to the Company and a new Warrant

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Certificate of the same tenor and for the unexercised number of Warrant Shares shall be executed by the Company within a reasonable time. The Company shall register the new Warrant Certificate in the name of the Holder or in such name or names of its transferee pursuant to the provisions of this Warrant as may be directed in writing by the Holder and deliver the new Warrant Certificate to the Person or Persons entitled to receive the same as promptly as reasonably practicable.

(d)  Upon surrender of this Warrant Certificate in conformity with the foregoing provisions, the Company shall, as promptly as reasonably practicable, transfer to the Holder of this Warrant Certificate appropriate evidence of ownership of the shares of Common Stock or other securities or property (including any money) to which the Holder is entitled, registered or otherwise placed in, or payable to the order of, the name or names of the Holder or such transferee pursuant to the provisions of this Warrant as may be directed in writing by the Holder, and shall, as promptly as reasonably practicable, deliver such evidence of ownership and any other securities or property (including any money) to the Person or Persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in paragraph 5 below.

(e)  In lieu of making the cash payment required to exercise the Warrant pursuant to paragraph 2(a) (but in all other respects in accordance with the exercise procedure set forth in paragraph 2(a)), the Holder may elect to convert this Warrant into shares of Common Stock, in which event the Company will issue to the Holder the number of shares of Common Stock equal to the result obtained under the following equation:

X = (A - B) x C where:

                        A

X =	the number of shares of Common Stock issuable upon exercise pursuant to this paragraph 2(e).
A =	the Current Market Price Per Common Share (as defined below) on the date on which the Holder delivers the Warrant Exercise Subscription Form pursuant to paragraph 2(a).
B =	the Exercise Price.
C =	the number of shares of Common Stock as to which this Warrant is being exercised pursuant to paragraph 2(a).

If the foregoing calculation results in a negative number, then no shares of Common Stock shall be issued upon exercise pursuant to this paragraph 2(e).

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3.    Restrictive Legend; Restrictions on Transfer. Certificates representing shares of Common Stock issued pursuant to this Warrant shall bear a legend substantially in the form of the legend set forth on the first page of this Warrant Certificate until such time as such legend is removed pursuant to Section 6.04 of the Transaction Agreement. The Holder agrees not to make any transfer or disposition of all or any portion of the Warrant Shares unless (a) there is then in effect a registration statement under the 1933 Act covering such proposed transfer or disposition and such transfer or disposition is made in accordance with such registration statement, (b) such transfer or disposition is made in accordance with Rule 144 under the 1933 Act or (c) (i) the transferee has agreed in writing to be bound by these transfer restrictions, (ii) the Holder shall have notified the Company of the proposed transfer or disposition and shall have furnished the Company with a reasonably detailed statement of the circumstances surrounding the proposed transfer or disposition (but not necessarily the economic terms thereof) and (iii) if reasonably requested by the Company and the transfer is not to an Affiliate of the Holder, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such transfer or disposition does not require registration of the Warrant Shares under the 1933 Act. The Holder agrees not to make any transfer or disposition of all or any portion of this Warrant unless (v) the transferee is an Affiliate of the Holder or the transferee is, substantially concurrently with the transfer, purchasing at least [        ]¹ shares of Common Stock from the Holder, (w) this Warrant is transferred or disposed of in whole or in a portion representing at least 250,000 Warrant Shares, (x) the transferee has agreed in writing to be bound by these transfer restrictions, (y) the Holder shall have notified the Company of the proposed transfer or disposition and shall have furnished the Company with a reasonably detailed statement of the circumstances surrounding the proposed transfer or disposition (but not necessarily the economic terms thereof) and (z) if reasonably requested by the Company and the transfer is not to an Affiliate of the Holder, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such transfer or disposition does not require registration of this Warrant under the 1933 Act.

4.    Reservation of Shares. The Company hereby agrees that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant such number of its authorized but unissued shares of Common Stock or other securities of the Company from time to time issuable upon exercise of this Warrant as will be sufficient to permit the exercise in full of this Warrant. All such shares shall be duly authorized and, when issued upon such exercise, shall be validly issued, fully paid and non-assessable, free and clear of all liens,

¹ Half of the total shares of Diversa Common Stock (excluding the Warrant) held by Syngenta as of Closing.

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security interests, charges and other encumbrances or (except as contemplated in the legend referred to in Section 3) restrictions on sale and free and clear of all preemptive rights.

5.    Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant and in lieu of delivery of any such fractional share upon any exercise hereof, the Company shall pay to the Holder an amount in cash equal to such fraction multiplied by the Current Market Price Per Common Share on the date on which the Holder delivers the Warrant Exercise Subscription Form pursuant to paragraph 2(a).

“Current Market Price Per Common Share” on any date shall be the average of the Daily Prices (as defined below) per share of the applicable class of Common Stock for the 20 consecutive trading days immediately prior to such date. “Daily Price” means (A) the last reported sale price on such day on the National Market of the National Association of Securities Dealers, Inc. Automated Quotation System (not identified as having been reported late to such system) (“NASDAQ”); or (B) if the shares of such class of Common Stock then are not traded on the NASDAQ National Market, the closing price (at the close of the regular trading session) on such day as reported by the principal national securities exchange on which the shares are listed and traded, or, if not so listed and traded, the average of the highest reported bid and lowest reported asked price on such day as reported by NASDAQ. If on any determination date the shares of such class of Common Stock are not quoted by any such organization, the Current Market Price Per Common Share shall be the fair market value of such shares on such determination date as determined by the Board of Directors. If the Principal Holder shall object to any determination by the Board of Directors of the Current Market Price Per Common Share, the Current Market Price Per Common Share shall be the fair market value per share of the applicable class of Common Stock as determined by an independent appraiser retained by the Principal Holder and reasonably acceptable to the Company. The expense of such independent appraiser shall be shared equally by the Company and Principal Holder.

6.    Exchange, Transfer or Assignment of Warrant.

(a)  Subject to compliance with applicable federal and state securities laws and the provisions of the Warrant, this Warrant Certificate and all rights hereunder are transferable by the registered holder hereof. Each taker and holder of this Warrant Certificate by taking or holding the same, consents and agrees that the registered holder hereof may be treated by the Company and all other persons dealing with this Warrant Certificate as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby.

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(b)  Subject to compliance with applicable federal and state securities laws and the provisions of this Warrant, the Holder of this Warrant shall be entitled to assign and transfer this Warrant, at any time in whole or from time to time in part (subject to Section 3 hereof, without obtaining the consent of the Company), to any Person or Persons. Subject to the preceding sentence, upon surrender of this Warrant to the Company, together with the attached Warrant Assignment Form duly executed, the Company shall, as promptly as reasonably practicable, without charge, execute and deliver a new Warrant in the name of the assignee or assignees named in such instrument of assignment and, if the Holder’s entire interest is not being assigned, in the name of the Holder and this Warrant shall promptly be canceled.

7.    Loss or Destruction of Warrant. Upon receipt by the Company of evidence satisfactory to it (in the exercise of its reasonable discretion) of the loss, theft, destruction or mutilation of this Warrant Certificate, and (in the case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of this Warrant Certificate, if mutilated, the Company shall execute and deliver a new Warrant Certificate of like tenor and date.

8.    Anti-dilution Provisions.

(a)  In case the Company shall at any time after the date hereof subdivide or split its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision or split shall be proportionately reduced and the number of shares of Common Stock purchasable under this Warrant shall be proportionately increased. Conversely, in case the outstanding shares of Common Stock shall be combined or reclassified into a smaller number of shares, the Exercise Price in effect immediately prior to such combination or reclassification shall be proportionately increased and the number of shares of Common Stock purchasable under this Warrant shall be proportionately decreased. In case the Company shall at any time after the date hereof declare a dividend or make a distribution on Common Stock payable in Common Stock, the Exercise Price in effect at the time of the record date for such dividend or distribution and the aggregate number of shares of Common Stock receivable upon exercise of this Warrant shall be proportionately adjusted so that the exercise of this Warrant in full after such time shall entitle the Holder to receive (for the Aggregate Exercise Price (as defined below)) the aggregate number of shares of Common Stock which, if this Warrant had been exercised in full immediately prior to such time (for the aggregate Exercise Price in effect at such time (the “Aggregate Exercise Price”)), such Holder would have owned upon such exercise and been entitled to receive by virtue of such dividend or distribution. If any declared dividend or distribution on Common Stock payable in Common Stock for which adjustments have been made pursuant to the immediately preceding sentence is not paid in whole or in part on the applicable payment date, then, effective as of the time of the record date for such dividend or

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distribution, the Exercise Price and the aggregate number of shares of Common Stock receivable upon exercise of this Warrant shall be proportionately readjusted so that the exercise of this Warrant in full after such time shall entitle the Holder to receive (for the Aggregate Exercise Price) the aggregate number of shares of Common Stock which, if this Warrant had been exercised in full immediately prior to such time (for the Aggregate Exercise Price), such Holder would have owned upon such exercise and in fact received by virtue of such dividend or distribution. In case the Company shall at any time after the date hereof issue any shares of its capital stock in a reclassification of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), then, as a condition to such reclassification, lawful provisions shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time that this Warrant is exercisable to purchase, at a total price equal to that payable upon exercise of this Warrant, the kind and amount of capital stock receivable in connection with such recapitalization by a record holder of the same number of shares of Common Stock as were purchasable by the Holder immediately prior to such recapitalization. Such adjustments shall be made successively whenever any event listed above shall occur.

(b)  In case the Company shall issue or sell any Common Stock (other than Common Stock issued (i) upon exercise of this Warrant, (ii) pursuant to the Company’s employee stock option plans or employee stock purchase plans or pursuant to any similar Common Stock related employee compensation plan of the Company approved by the Board of Directors, (iii) pursuant to the terms of any arm’s-length “PIPE” or similar financing which by its customary commercial terms (in an arm’s-length transaction) involves the issuance of Common Stock at a discount to the Current Market Price Per Common Share (provided that such discount shall not exceed 10%), (iv) to the underwriters in any public offering of Common Stock registered under the 1933 Act at a reasonable discount based on prevailing market conditions, (v) to the counterparty pursuant to the terms of any arm’s-length and unaffiliated equity line of credit financing which by its customary commercial terms (in an arm’s-length transaction) involves the issuance of Common Stock at a discount to the Current Market Price Per Common Share (provided that (A) such discount shall not exceed 5% and (B) the resale of the Common Stock subject to the equity line of credit financing arrangement is registered under the 1933 Act), (vi) upon exercise or conversion of any security the issuance of which caused an adjustment under paragraph 8(c) or 8(d) hereof) without consideration or for a consideration per share less than the Current Market Price Per Common Share, the Exercise Price to be in effect after such issuance or sale shall be determined by multiplying the Exercise Price in effect immediately prior to such issuance or sale by a fraction, the numerator of which shall be the sum of (x) the number of shares of Common Stock outstanding immediately prior to the time of such issuance or sale multiplied by the Current

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Market Price Per Common Share immediately prior to such issuance or sale and (y) the aggregate consideration, if any, to be received by the Company upon such issuance or sale, and the denominator of which shall be the product of the aggregate number of shares of Common Stock outstanding immediately after such issuance or sale and the Current Market Price Per Common Share immediately prior to such issuance or sale. In case any portion of the consideration to be received by the Company shall be in a form other than cash, the fair market value of such noncash consideration shall be utilized in the foregoing computation. Such fair market value shall be determined by the Board of Directors; provided that if the Principal Holder shall object to any such determination, such fair market value shall be as determined by an independent appraiser retained by the Principal Holder and reasonably acceptable to the Company. The expense of such independent appraiser shall be shared equally by the Company and Principal Holder. The Holder shall be notified promptly of any consideration other than cash to be received by the Company and furnished with a description of the consideration and the fair market value thereof, as determined by the Board of Directors. Such adjustments shall be made successively whenever any event listed above shall occur.

(c)  In case the Company shall fix a record date for the issuance of rights, options or warrants to the holders of its Common Stock or other securities entitling such holders to subscribe for or purchase for a period expiring within 60 days of such record date shares of Common Stock (or securities convertible into share of Common Stock) at a price per share of Common Stock (or having a conversion price per share of Common Stock, if a security convertible into shares of Common Stock) less than the Current Market Price Per Common Share on such record date, the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants (or conversion of such convertible securities) shall be deemed to have been issued and outstanding as of such record date and the Exercise Price shall be adjusted pursuant to paragraph 8(b) hereof, as though such maximum number of shares of Common Stock had been so issued for the aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such shares of Common Stock. In case any portion of such consideration shall be in a form other than cash, the fair market value of such noncash consideration shall be determined as set forth in paragraph 8(b) hereof. Such adjustment shall be made successively whenever any such record date is fixed; and in the event that such rights, options or warrants or securities convertible into shares of Common Stock are not so issued or expire unexercised, or in the event of a change in the number of shares of Common Stock to which the holders of such rights, options or warrants or securities convertible into shares of Common Stock are entitled or the aggregate consideration payable by the holders of such rights, options, warrants or convertible securities for such shares of Common Stock prior to their receipt of such shares of Common Stock (other than pursuant to adjustment provisions therein comparable to those contained in this paragraph 8), the Exercise Price

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shall again be adjusted to be the Exercise Price which would then be in effect if such rights, options or warrants or securities convertible into shares of Common Stock that were not so issued or expired unexercised had never had their related record date fixed, in the former event, or the Exercise Price which would then be in effect if such holder had initially been entitled to such changed number of shares of Common Stock or required to pay such changed consideration, in the latter event.

(d)  In case the Company shall issue rights, options (other than options issued pursuant to a plan described in clause 8(b)(ii)) or warrants entitling the holders thereof to subscribe for or purchase Common Stock (or securities convertible into shares of Common Stock) or shall issue convertible securities (other than any securities issued in an arm’s-length “PIPE” or similar financing which by its customary commercial terms (in an arm’s-length transaction) involves the issuance of Common Stock at a discount to the Current Market Price Per Common Share (provided that such discount shall not exceed 10%)), and the price per share of Common Stock of such rights, options, warrants or convertible securities (including, in the case of rights, options or warrants, the price at which they may be exercised) is less than the Current Market Price Per Common Share, the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants or upon conversion of such convertible securities shall be deemed to have been issued and outstanding as of the date of such sale or issuance, and the Exercise Price shall be adjusted pursuant to paragraph 8(b) hereof as though such maximum number of shares of Common Stock had been so issued for an aggregate consideration equal to the aggregate consideration paid for such rights, options, warrants or convertible securities and the aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to (and in respect of) their receipt of such shares of Common Stock. In case any portion of such consideration shall be in a form other than cash, the fair market value of such noncash consideration shall be determined as set forth in paragraph 8(b) hereof. Such adjustment shall be made successively whenever such rights, options, warrants or convertible securities are issued; and in the event that such rights, options or warrants or convertible securities expire unexercised, or in the event of a change in the number of shares of Common Stock to which the holders of such rights, options, warrants or convertible securities are entitled or the aggregate consideration payable by the holders of such rights, options, warrants or convertible securities for such shares of Common Stock prior to their receipt of such shares of Common Stock, whether upon the issuance of the rights, options, warrants or convertible securities or upon the issuance of the Common Stock (other than pursuant to adjustment provisions therein comparable to those contained in this paragraph 8), the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such rights, options, warrants or convertible securities had not been issued, in the former event, or the Exercise Price which would then be in effect if such holders had initially been entitled to such changed number of shares of Common Stock or

9

required to pay such changed consideration, in the latter event. No adjustment of the Exercise Price shall be made pursuant to this paragraph 8(d) to the extent that the Exercise Price shall have been adjusted pursuant to paragraph 8(c) upon the setting of any record date relating to such rights, options, warrants or convertible securities and such adjustment fully reflects the number of shares of Common Stock to which the holders of such rights, options, warrants or convertible securities are entitled and the price payable therefor.

(e) In case the Company shall fix a record date for the making of a distribution to holders of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness, assets or other property (other than (i) dividends payable in Common Stock or (ii) rights, options or warrants or convertible securities referred to in, and for which an adjustment is made pursuant to, paragraph 8(c) hereof), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price Per Common Share on such record date, less the fair market value (determined as set forth in paragraph 8(b) hereof) of the portion of the assets, other property or evidence of indebtedness so to be distributed which is applicable to one share of Common Stock, and the denominator of which shall be such Current Market Price Per Common Share. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.

(f) No adjustment in the Exercise Price or otherwise pursuant to paragraphs 8(a) through (e) shall be required unless such adjustment would require an increase or decrease of at least one percent in such price; provided that any adjustments which by reason of this paragraph 8(f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph 8 shall be made to the nearest one tenth of a cent or to the nearest hundredth of a share, as the case may be.

(g) In the event that, at any time as a result of the provisions of this paragraph 8, the holder of this Warrant upon subsequent exercise shall become entitled to receive any shares of capital stock of the Company other than Common Stock, the number of such other shares so receivable upon exercise of this Warrant shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained herein.

(h) Notwithstanding any other provision to the contrary, no adjustment in the Exercise Price or otherwise pursuant to paragraphs 8(a) through

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(e) shall be required as a result of any of the following, in and of itself: (i) the issuance of any rights under the Rights Plan in connection with the issuance of any shares of Common Stock after December 22, 2000 pursuant to the declaration of the dividend of rights under the Rights Plan by the Board of Directors on December 13, 2000 or (ii) the issuance of any rights under any shareholder rights plan of the Company approved by the Board of Directors upon termination of the Rights Plan or expiration of the rights issued thereunder.

9.    Consolidation, Merger, or Sale of Assets.  In case of any consolidation of the Company with, or merger of the Company into, any other Person, any merger of another Person into the Company (other than a consolidation or merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) or any sale or transfer of all or substantially all of the assets of the Company or of the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, the Holder shall have the right thereafter, upon exercise of this Warrant in accordance with and subject to all of the provisions of this Warrant, to receive the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock for which this Warrant may have been exercised immediately prior to such consolidation, merger, sale or transfer, assuming (i) such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (“constituent Person”), or an Affiliate of a constituent Person and (ii) in the case of a consolidation, merger, sale or transfer which includes an election as to the consideration to be received by the holders, such holder of Common Stock failed to exercise its rights of election, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer is not the same for each share of Common Stock held immediately prior to such consolidation, merger, sale or transfer by other than a constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised (“non-electing share”), then for the purpose of this paragraph 9 the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). Adjustments for events subsequent to the effective date of such a consolidation, merger and sale of assets shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. In any such event, effective provisions shall be made in the certificate or articles of incorporation of the resulting or surviving corporation, in any contract of sale, conveyance, lease or transfer, or otherwise so that the provisions set forth herein for the protection of the rights of the Holder shall thereafter continue to be applicable; and any such

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resulting or surviving corporation shall expressly assume the obligation to deliver, upon exercise, such shares of stock, other securities, cash and property. The provisions of this paragraph 9 shall similarly apply to successive consolidations, mergers, sales, leases or transfers.

10.    Notices.  Any notice, demand or delivery authorized by this Warrant Certificate shall be in writing and shall be given to the Holder or the Company, as the case may be, at its address (or telecopier number) set forth below, or such other address (or telecopier number) as shall have been furnished to the party giving or making such notice, demand or delivery:

If to the Company:

Diversa Corporation

4955 Directors Place

San Diego, California 92121

Attention:  Karin Eastham

Fax:  858-526-5605

with a copy to:

Cooley Godward LLP

4401 Eastgate Mall

San Diego, California 92121

Attention:  Carl R. Sanchez, Esq.

Fax:  858-550-6420

If to the Holder:

Syngenta Participations AG

Schwarzwaldallee 215

CH-4002 Basel

Switzerland

Attention:  President

Fax:  (41) 61-323-7571

with a copy to:

Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Attention:  Louis Goldberg, Esq.

Fax:  (212) 450-3800

Each such notice, demand or delivery shall be effective (i) if given by telecopy, when such telecopy is transmitted to the telecopy number specified herein and the

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intended recipient confirms the receipt of such telecopy or (ii) if given by any other means, when received at the address specified herein.

11.    Rights of the Holder.  Prior to the exercise of any Warrant, the Holder shall not, by virtue hereof, be entitled to any rights of a shareholder of the Company, including, without limitation, the right to vote, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of shareholders or any notice of any proceedings of the Company except as may be specifically provided for herein.

12.    GOVERNING LAW.  THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS.

13.    Amendments; Waivers.  Any provision of this Warrant Certificate may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Holder and the Company, or in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

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IN WITNESS WHEREOF, the Company has duly caused this Warrant Certificate to be signed by its duly authorized officer and to be dated as of [        ], 2002.

DIVERSA CORPORATION
By:
	Name: Title:

Acknowledged and Agreed:

SYNGENTA PARTICIPATIONS AG
By:
	Name: Title:

By:
	Name: Title:

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WARRANT EXERCISE NOTICE

(To be delivered prior to exercise of the Warrant

by execution of the Warrant Exercise Subscription Form)

To: Diversa Corporation

The undersigned hereby notifies you of its intention to exercise the Warrant to purchase shares of Common Stock, par value $.001 per share, of Diversa Corporation. The undersigned intends to exercise the Warrant to purchase              shares (the “Shares”) at $         per Share (the Exercise Price currently in effect pursuant to the Warrant). The undersigned intends to pay the aggregate Exercise Price for the Shares (i) in cash, certified or official bank or bank cashier’s check (or a combination of cash and check) or (ii) pursuant to the “cash-less” exercise mechanism described in Section 2(e) of the Warrant, as indicated below.

Date:                 

(Signature of Owner)

(Street Address)

(City)                        (State)                         (Zip Code)

Payment:        $             cash

               $             check

                        “cash-less” exercise pursuant to Section 2(e) of the Warrant

WARRANT EXERCISE SUBSCRIPTION FORM

(To be executed only upon exercise of the Warrant

after delivery of Warrant Exercise Notice)

To: Diversa Corporation

The undersigned irrevocably exercises the Warrant for the purchase of              shares (the “Shares”) of Common Stock, par value $.001 per share, of Diversa Corporation (the “Company”) at $             per Share (the Exercise Price currently in effect pursuant to the Warrant) [and herewith makes payment of $             (such payment being made in cash or by certified or official bank or bank cashier’s check payable to the order of the Company or by any permitted combination of such cash or check) / pursuant to the “cash-less” exercise mechanism described in Section 2(e) of the Warrant], all on the terms and conditions specified in the within Warrant Certificate, surrenders this Warrant Certificate and all right, title and interest therein to the Company and directs that the Shares deliverable upon the exercise of this Warrant be registered or placed in the name and at the address specified below and delivered thereto.

Date:                 

(Signature of Owner)

(Street Address)

(City)                        (State)                         (Zip Code)

Securities and/or check to be issued to:                                                                                                                                                                                     

Please insert social security or identifying number:                                                                                                                                                               

Name:                                                                                                                                                                                                                                                    

Street Address:                                                                                                                                                                                                                                   

City, State and Zip Code:                                                                                                                                                                                                                

Any unexercised portion of the Warrant evidenced by the within Warrant

Certificate to be issued to:

Please insert social security or identifying number:                                                                                                                                                               

Name:                                                                                                                                                                                                                                                    

Street Address:                                                                                                                                                                                                                                   

City, State and Zip Code:                                                                                                                                                                                                                

WARRANT ASSIGNMENT FORM

Dated                     ,             

FOR VALUE RECEIVED,                              hereby sells, assigns and transfers unto                                                               (the

(please type or print in block letters)          

“Assignee”),

(insert address)

this Warrant for up to [            ] shares of Common Stock and does hereby irrevocably constitute and appoint                                       Attorney, to transfer the same on the books of the Company, with full power of substitution in the premises.

Signature:                                                  

EX-4.6

Exhibit 4.6

REGISTRATION RIGHTS AGREEMENT

AGREEMENT (this “Agreement”) dated as of December 3, 2002 among Syngenta Participations AG, a corporation organized under the laws of Switzerland (“SPARTAG”), Torrey Mesa Research Institute, a Delaware corporation (“TMRI”) and Syngenta Seeds AG, a corporation organized under the laws of Switzerland (“Syngenta Seeds”, and together with SPARTAG and TMRI, the “Syngenta Parties”) and Diversa Corporation, a Delaware corporation (the “Company”),

W I T N E S S E T H :

WHEREAS, the parties hereto have entered into the Transaction Agreement dated as of December 3, 2002 (the “Transaction Agreement”); and

WHEREAS, this Agreement provides for certain rights and obligations of the Company and the Holders (as defined herein) with respect to registration of the securities of the Company under the 1933 Act.

NOW, THEREFORE, in consideration of the mutual promises made herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.01.  Definitions.    (a) Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the Transaction Agreement.

(b)  The following capitalized terms shall have the meanings set forth below:

“Additional Equity Securities” has the meaning ascribed thereto in Section 2.01(g).

“Common Stock” means the Common Stock, par value $.001 per share, of the Company.

“Company Securities” has the meaning ascribed thereto in Section 2.02(c).

“Existing Third Party Additional Equity Securities” has the meaning ascribed thereto in Section 2.01(g).

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“Existing Third Party Parity Securities” means any Other Securities that are requested to be included in a registration referred to in the first sentence of Section 2.02(a) and that are entitled to registration rights existing on the date hereof that, pursuant to the terms thereof (as in existence on the date hereof), have equal priority with the Registrable Securities in such a registration.

“Existing Third Party Priority Securities” means any Other Securities that are requested to be included in a registration referred to in the first sentence of Section 2.02(a) and that are entitled to registration rights existing on the date hereof that, pursuant to the terms thereof (as in existence on the date hereof), are entitled to priority over the Registrable Securities in such a registration.

“Holder” means each Syngenta Party and, subject to Section 2.08, any Transferee thereof.

“Initial Requesting Holders” means the Requesting Holders initiating the registration pursuant to the first sentence of Section 2.01(a).

“Majority Holders” means the Holders holding a majority in aggregate of the Registrable Securities held by all Holders.

“Materially Prejudicial Condition” has the meaning ascribed thereto in Section 2.01(a).

“1999 Stockholders Agreement” means the Amended and Restated Stockholders’ Agreement dated as of January 25, 1999 by and among the Company and the stockholders named therein.

“Other Securities” has the meaning ascribed thereto in Section 2.02(a).

“Registrable Securities” means (i) the Shares, (ii) the Warrant Shares, (iii) any shares of Common Stock held by the Syngenta Parties or their Affiliates as of the date of the Transaction Agreement, (iv) any shares of Common Stock acquired by the Syngenta Parties or their Affiliates after Closing as contemplated by Section 4.05 of the Transaction Agreement and (v) any securities issued directly or indirectly with respect to such securities by way of a split, dividend, or other division of securities, or in connection with a combination of securities, recapitalization, merger, consolidation, or other reorganization. As to any particular Registrable Securities, such Registrable Securities shall cease to be Registrable Securities when they (A) have been effectively registered under the 1933 Act and disposed of in accordance with the registration statement covering them, (B) have been sold pursuant to Rule 144 under the 1933 Act, (C) could be sold pursuant to Rule 144(k) under the 1933 Act or (D) have been repurchased by the Company or otherwise cease to be outstanding.

“Registration Expenses” means any and all expenses incident to performance of or compliance with any registration or marketing of securities

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pursuant to Article 2, including (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with this Agreement and the performance of the Company’s obligations hereunder (including the expenses of any annual audit letters and “cold comfort” letters required or incidental to the performance of such obligations); (ii) all expenses, including filing fees, in connection with the preparation, printing and filing of the registration statement, any preliminary prospectus or final prospectus, any other offering document and amendments and supplements thereto and the mailing and delivering of copies thereof to any underwriters and dealers; (iii) the cost of printing and producing (which, it is understood and agreed, shall not include the fees and expenses of underwriters’ counsel) any agreements among underwriters, underwriting agreements, selling group agreements and any other customary documents in connection with the marketing of securities pursuant to Article 2; (iv) all expenses in connection with the qualification of the securities to be disposed of for offering and sale under state securities laws, including the reasonable fees and disbursements of counsel for the underwriters or the Holders of securities in connection with such qualification and in connection with any blue sky and legal investment surveys, including the cost of printing and producing any such blue sky or legal investment surveys; (v) the filing fees incident to securing any required review by the National Association of Securities Dealers, Inc. of the terms of the securities being registered pursuant to Article 2; (vi) transfer agents’ and registrars’ fees and expenses and the fees and expenses of any other agent or trustee appointed in connection with such offering; (vii) all security engraving and security printing expenses; (viii) all fees and expenses payable in connection with the listing of the securities on any securities exchange or automated interdealer quotation system; (ix) the costs and expenses of the Company and its officers relating to analyst or investor presentations, if any, or any “road show” undertaken in connection with the registration and/or marketing of any Registrable Securities and (x) the reasonable fees and expenses of no more than one legal counsel to the Holders selected pursuant to Section 2.01(e) or by the Selling Holders holding a majority of the Registrable Securities included in the relevant registration statement, as applicable, up to a maximum of $15,000 per registration for each registration including Registrable Securities under this Agreement. In no event shall Registration Expenses be deemed to include underwriting discounts and commissions and transfer taxes, if any.

“Requesting Holders” means the Holders requesting the registration of their Registrable Securities pursuant to Section 2.01(a) or Section 2.01(f).

“Rule 415 Offering” means an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the 1933 Act.

“Selling Holder” means a Holder of Registrable Securities included in the relevant registration statement.

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“Transferee” has the meaning ascribed thereto in Section 2.08.

ARTICLE 2

REGISTRATION RIGHTS

Section 2.01.  Demand Registration.    (a) At any time, the Majority Holders may request in writing that the Company effect the registration under the 1933 Act of any or all of the Registrable Securities held by such requesting Holders, which notice shall specify the intended method or methods of disposition of such Registrable Securities. Except as otherwise provided herein, the Company shall prepare and (within 90 days after such request has been given) file with the SEC a registration statement with respect to (x) all Registrable Securities included in such request and (y) all Registrable Securities included in any request delivered by the Requesting Holders pursuant to Section 2.01(f), and thereafter use its reasonable efforts to effect the registration under the 1933 Act and applicable state securities laws of such Registrable Securities for disposition in accordance with the intended method or methods of disposition stated in such request (which requested method of disposition may be a Rule 415 Offering, provided that the Company shall not be required to maintain the effectiveness of a registration statement relating to a Rule 415 Offering to the extent the securities included in such registration cease to be Registrable Securities); provided further that the Company shall not be obligated to effect any such registration pursuant to this Section 2.01(a) (i) during the period starting with the date of filing of, and ending on the date 90 days following the effective date of, a registration statement pertaining to a public offering initiated or requested by the Company or any stockholder other than a Holder, (ii) if within 30 days of receipt of a written request from the Requesting Holders, the Company gives notice to the Requesting Holders of the Company’s intention to make a public offering within 90 days for the Company’s account (provided that in such case, the Company shall, subject to Section 2.02(c) and Section 2.02(d), use its reasonable efforts to include in the registration relating to such public offering all Registrable Securities requested to be included by any Holder pursuant to Section 2.02(a) and, in the event Section 2.02(c) or Section 2.02(d) applies to such registration, shall include in such registration a number of such Registrable Securities that is equal to at least 15% of the shares of Common Stock (on an as-converted basis, with respect to securities convertible into or exchangeable for Common Stock to be included in such registration) that the Company is registering pursuant to such registration), (iii) if the Requesting Holders propose to sell Registrable Securities pursuant to such registration statement at an aggregate price to the public of less than $500,000 or (iv) if the Company furnishes to the Requesting Holders a certified resolution of the Board of Directors stating that in the Board of Directors’ good faith judgment it would be materially prejudicial (a “Materially Prejudicial Condition”) to the Company for such a registration statement to be filed and

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become effective, and, if requested by the Requesting Holders (and subject to their entering into a customary confidentiality obligation as to such information), setting forth in reasonable detail the general reasons for such judgment. The Company shall also be able to suspend the use of, or withdraw and terminate the effectiveness of, any effective registration statement by furnishing the Holders with a certified copy of such resolution of the Board of Directors as to a Materially Prejudicial Condition. Upon receipt of such certified copy, the Holders shall immediately discontinue use of the prospectus contained in such registration statement and, if so directed by the Company, the Holders shall deliver to the Company all copies, other than permanent file copies, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. The Company shall promptly deliver to each Requesting Holder or Holders, as applicable, written notice of the non-existence of any Materially Prejudicial Condition with respect to which the Company previously furnished notice.

Neither the filing nor the effectiveness of any such registration statement may be delayed, or the use of the prospectus contained in any such registration statement suspended, for a period in excess of 90 days due to the occurrence of any particular Materially Prejudicial Condition and the Company may exercise its delay or suspension rights on only one occasion in connection with any registration request under Section 2.01 in any twelve-month period. If requested by the Initial Requesting Holders, the Company shall, if any registration statement shall have failed to have been filed or shall have been suspended, withdrawn or terminated because of a Materially Prejudicial Condition, promptly after such time as the Materially Prejudicial Condition no longer exists or, if earlier, at the end of the 90-day period following the occurrence of such Materially Prejudicial Condition, file the unfiled registration statement, a post-effective amendment to the suspended registration statement and/or an amended or supplemented prospectus thereto, or a new registration statement covering the Registrable Securities that were covered by such unfiled, suspended or withdrawn or terminated registration and maintain the effectiveness thereof for such time as is required under this Agreement.

(b)  The Majority Holders may collectively exercise their rights under this Section 2.01 (x) on an unlimited number of occasions with respect to registration statements on Forms S-2 or S-3 (or any successors thereto) and (y) on not more than two occasions with respect to registration statements on Form S-1 (or any successor thereto). Notwithstanding the foregoing, in the event that the Majority Holders request the registration of any Registrable Securities within clause (iv) of the definition of such term alone and not in connection with the registration of any other Registrable Securities, then such request may only be made on one occasion.

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(c)  Without limiting the last sentence of Section 2.01(a), the Holders shall not have the right to require the filing of a registration statement pursuant to this Section 2.01 while any registration statement that has been filed pursuant to this Section 2.01 has yet to become effective or within six months following the effectiveness of any registration statement that was filed pursuant to this Section 2.01.

(d)  A registration pursuant to this Section 2.01 shall not be deemed to have been effected (and, therefore, rights of a Requesting Holder shall be deemed not to have been exercised for purposes of paragraph (a) above) (i) unless it has become effective, (ii) if after it has become effective such registration (or the use of the prospectus contained in such registration statement) is (A) interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason other than a misrepresentation or an omission by any Holder or (B) delayed, withdrawn, suspended or terminated and, in each case, as a result thereof, the Registrable Securities requested to be registered cannot be completely distributed in accordance with the plan of distribution set forth in the related registration statement (until such time as the Registrable Securities requested to be registered may be completely distributed in accordance with the plan of distribution set forth in the related registration statement) or (iii) if the conditions to closing specified in any purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than because of some act or omission by any Holder.

(e)  In the event that any registration pursuant to Section 2.01(a) shall involve, in whole or in part, an underwritten offering, the Holders of a majority of the Registrable Securities to be registered shall select the lead underwriter or underwriters (which selection or selections shall be subject to the approval of the Company, which approval shall not be unreasonably withheld), as well as counsel for the Holders, with respect to such registration. The parties hereto acknowledge and agree that the Company shall have sole discretion with respect to the selection of underwriters for any registration pursuant to Section 2.02 that involves an underwritten offering.

(f)  Upon receipt of a written request from the Initial Requesting Holders pursuant to the first sentence of Section 2.01(a), the Company shall promptly give written notice of such requested registration to all other Holders of Registrable Securities and the intended method or methods of disposition stated in such request. Each other Holder may, by written notice to the Company to be delivered within 10 days of the delivery of the Company’s notice, request the inclusion in such registration of any Registrable Securities held by such other Holder. The Company shall promptly after the expiration of such 10-day period notify each Requesting Holder of (i) the identity of the other Requesting Holders and (ii) the number of Registrable Securities requested to be included therein by each Requesting Holder. In the event that the Initial Requesting Holders intend

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to distribute the Registrable Securities covered by their request by means of an underwriting, the right of any Holder to include all or any portion of its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute all of any portion of their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form (for secondary sales by selling stockholders) with the underwriter or underwriters selected pursuant to Section 2.01(e).

(g)  The Company shall have the right to cause the registration of additional equity securities for sale for the account of any Person that is not a Holder (including the Company and any directors, officers or employees of the Company (such additional equity securities, the “Additional Equity Securities”)) in any registration of Registrable Securities requested by the Requesting Holders; provided that if such registration is to be an underwritten registration and such Requesting Holders are advised in writing (with a copy to the Company) by a nationally recognized investment banking firm selected pursuant to paragraph (e) above that, in such firm’s good faith view, all or a part of the equity securities to be included in such registration (including any Additional Equity Securities) cannot be sold and the inclusion of all or part of the equity securities that would otherwise be included in such registration would be likely to have an adverse effect on the price, timing or distribution of the offering and sale of the equity securities to be included in such registration, then the Company shall exclude from such registration such Additional Equity Securities or part thereof, to the nearest extent possible on a pro rata basis, except to the extent doing so would be inconsistent with the provisions of any agreement existing on the date hereof under which any of the Additional Equity Securities are entitled to registration rights (any such Additional Equity Securities, “Existing Third Party Additional Equity Securities”), in which case the Company shall include in such registration:

(i)  first, a number of Registrable Securities and such Existing Third Party Additional Equity Securities, to the nearest extent possible on a pro rata basis (with the number of Registrable Securities and Existing Third Party Additional Equity Securities that will be so included in such registration being determined on the basis of the number of Registrable Securities that the Requesting Holders request be included in such registration and the number of Existing Third Party Additional Equity Securities that are proposed to be included in such registration); and

(ii)  second, up to the full number of any other Additional Equity Securities, if any, in excess of the Registrable Securities and any Existing Third Party Additional Equity Securities to be sold in such offering which, in the good faith view of such investment banking firm,

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can be so sold without so adversely affecting such offering in the manner described above.

In the event that the number of Registrable Securities requested to be included in a registration statement that will not include any Additional Equity Securities by the Requesting Holders exceeds the number which, in the good faith view of such investment banking firm, can be sold without adversely affecting the price, timing, distribution or sale of securities in the offering, the number shall be allocated pro rata among all of the Requesting Holders on the basis of the relative number of Registrable Securities then held by each such Requesting Holder (with any number in excess of a Requesting Holder’s request reallocated among the remaining Requesting Holders in a like manner).

Section 2.02.  Piggyback Registration.    (a) In the event that the Company proposes to register any of its Common Stock, any other of its equity securities or securities convertible into or exchangeable for its equity securities (collectively, including Common Stock, “Other Securities”) under the 1933 Act, whether or not for sale for its own account, in a manner that would permit registration of Registrable Securities for sale for cash to the public under the 1933 Act, it shall prior to such time as all Holders in the aggregate beneficially own less than 1,000,000 Registrable Securities (as adjusted for stock splits, combinations, recapitalizations and the like), give prompt written notice to each Holder of its intention to do so and of the rights of such Holder under this Section 2.02. Subject to the terms and conditions hereof, such notice shall offer each such Holder the opportunity to include in such registration statement such number of Registrable Securities as such Holder may request. Upon the written request of any such Holder made within 10 days after the receipt of the Company’s notice (which request shall specify the number of Registrable Securities intended to be disposed of and the intended method of disposition thereof), the Company shall use its reasonable efforts to effect, in connection with the registration of the Other Securities, the registration under the 1933 Act of all Registrable Securities which the Company has been so requested to register, to the extent required to permit the disposition (in accordance with such intended methods thereof) of the Registrable Securities so requested to be registered. Notwithstanding the immediately preceding sentence, in the event that the holders of the Other Securities intend to distribute the Other Securities covered by such registration by means of an underwriting, the right of any Holder to include all or any portion of its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute all of any portion of their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form (for secondary sales by selling stockholders) with the underwriter or underwriters. In addition, notwithstanding the third preceding sentence, no Holder may request that its Registrable Securities to be included in such

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registration shall be disposed of pursuant to a Rule 415 Offering if the Other Securities included in such registration are not being disposed of pursuant to a Rule 415 Offering.

(b)  If, at any time after giving a written notice of its intention to register any Other Securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register the Other Securities, the Company may, at its election, give written notice of such determination to such Holders and thereupon the Company shall be relieved of its obligation to register such Registrable Securities in connection with the registration of such Other Securities, without prejudice, however, to the rights of the Holders immediately to request that such registration be effected as a registration under Section 2.01 to the extent permitted thereunder.

(c) If the registration referred to in the first sentence of Section 2.02(a) is to be an underwritten registration and is initiated by the Company on its own behalf (and not pursuant to a valid registration request made by the holders of Existing Third Party Additional Equity Securities under any agreement existing on the date hereof under which such holders are entitled to registration rights), and a nationally recognized investment banking firm selected by the Company advises the Company in writing that, in such firm’s good faith view, the inclusion of all or a part of such Registrable Securities in such registration would be likely to have an adverse effect upon the price, timing or distribution of the offering and sale of the Other Securities then contemplated, the Company shall include in such registration:

(i)  first, all Other Securities the Company proposes to sell for its own account (“Company Securities”);

(ii)  second, up to the full number of any Existing Third Party Priority Securities that are requested to be included in such registration, in excess of the number of Company Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis;

(iii)  third, up to the full number of Registrable Securities held by Holders of Registrable Securities and any Existing Third Party Parity Securities that are requested to be included in such registration, in excess of the number of Company Securities and any Existing Third Party Priority Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis (with the number of Registrable Securities and Existing Third Party Parity Securities that will be so

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included in such registration being determined on the basis of the number of Registrable Securities that the Holders request be included in such registration and the number of Existing Third Party Parity Securities that are requested to be included in such registration); provided that if such investment banking firm advises the Company in writing that less than all of such Registrable Securities should be included in such offering, such Holders may withdraw their request for registration of their Registrable Securities under Section 2.02(a) and request under Section 2.01 (and subject to its provisions) that 90 days subsequent to the effective date of the registration statement for the registration of such Other Securities such registration of their Registrable Securities be effected under Section 2.01; and

(iv)  fourth, up to the full number of any Other Securities (that are not Company Securities, Existing Third Party Priority Securities or Existing Third Party Parity Securities) held by other holders of the Company’s securities entitled to registration rights that are requested to be included in such registration, in excess of the number of Company Securities, Existing Third Party Priority Securities, Registrable Securities and Existing Third Party Parity Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above.

(d)  If the registration referred to in the first sentence of Section 2.02(a) is to be an underwritten registration and is initiated by the Company pursuant to a valid registration request made by the holders of Existing Third Party Additional Equity Securities under any agreement existing on the date hereof under which such holders are entitled to registration rights, and a nationally recognized investment banking firm selected by the Company advises the Company in writing that, in such firm’s good faith view, the inclusion of all or a part of such Registrable Securities in such registration would be likely to have an adverse effect upon the price, timing or distribution of the offering and sale of the Other Securities then contemplated, the Company shall include in such registration:

(i)  first, up to the full number of any Existing Third Party Priority Securities that are requested to be included in such registration which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis;

(ii)  second, up to the full number of (A) any Company Securities that the Company proposes to include in such registration, (B) Registrable Securities held by Holders of Registrable Securities and (C) any Existing Third Party Parity Securities that are requested to be included

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in such registration, in excess of the number of any Existing Third Party Priority Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above, to the nearest extent possible on a pro rata basis (with the number of Company Securities, Registrable Securities and Existing Third Party Parity Securities that will be so included in such registration being determined on the basis of the number of Company Securities that the Company proposes to include in such registration, the number of Registrable Securities that the Holders request be included in such registration and the number of Existing Third Party Parity Securities that are requested to be included in such registration); provided that if such investment banking firm advises the Company in writing that less than all of such Registrable Securities should be included in such offering, such Holders may withdraw their request for registration of their Registrable Securities under Section 2.02(a) and request under Section 2.01 (and subject to its provisions) that 90 days subsequent to the effective date of the registration statement for the registration of such Other Securities such registration of their Registrable Securities be effected under Section 2.01; and

(iii) third, up to the full number of any Other Securities (that are not Existing Third Party Priority Securities, Company Securities or Existing Third Party Parity Securities) held by other holders of the Company’s securities entitled to registration rights that are requested to be included in such registration, in excess of the number of Existing Third Party Priority Securities, Company Securities, Registrable Securities and Existing Third Party Parity Securities to be sold in such offering which, in the good faith view of such investment banking firm, can be so sold without so adversely affecting such offering in the manner described above.

(e) The Company shall not be required to effect any registration of Registrable Securities under this Section 2.02 incidental to the registration of any of its securities in connection with mergers, acquisitions, exchange offers, subscription offers, dividend reinvestment plans or stock option or other executive or employee benefit or compensation plans or in connection with the filing of a Form S-4 or Form S-8 registration statement.

(f) No registration of Registrable Securities effected under this Section 2.02 shall relieve the Company of its obligation to effect a registration of Registrable Securities pursuant to Section 2.01.

Section 2.03. Expenses. Except as provided herein, the Company shall pay all Registration Expenses with respect to a particular offering (or proposed offering). Each Selling Holder shall bear the fees and expenses of its own counsel,

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except that reasonable fees and expenses of one counsel representing all Selling Holders (selected pursuant to Section 2.01(e) or by the Selling Holders holding a majority of the Registrable Securities included in the relevant registration statement, as applicable), up to a maximum of $15,000 per registration for each registration including Registrable Securities under this Agreement, will constitute Registration Expenses.

Section 2.04.    Registration and Qualification.  If the Company is required to effect the registration of any Registrable Securities under the 1933 Act as provided in Section 2.01 or 2.02, the Company shall as promptly as practicable, but subject to the other provisions of this Agreement:

(a)  prepare, file and use its reasonable efforts to cause to become effective a registration statement under the 1933 Act relating to the Registrable Securities to be offered in accordance with the intended method of disposition thereof;

(b)  prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the 1933 Act with respect to the disposition of all such Registrable Securities until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition set forth in such registration statement; provided that the Company will, at least 5 business days prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish to each Selling Holder copies of such registration statement or prospectus (or amendment or supplement) as proposed to be filed (including, upon the request of such Holder, documents to be incorporated by reference therein) which documents will be subject to the reasonable review and comments of such Holder (and its attorneys) during such 5 business-day period and the Company will not file any registration statement, any prospectus or any amendment or supplement thereto (or any such documents incorporated by reference) containing any statements with respect to such Holder to which such Holder shall reasonably object in writing;

(c)  furnish to the Selling Holders and to any underwriter of such Registrable Securities such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the 1933 Act, such documents incorporated by reference in such registration statement or prospectus, and such other documents as the Selling Holders or such underwriter may reasonably request, and, upon the request of the Selling Holders or such underwriter, a copy of any and all transmittal letters or other correspondence to or received from, the

12

SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering;

(d)  after the filing of the registration statement, promptly notify each Selling Holder in writing of the effectiveness thereof and of any stop order issued or, to the knowledge of the Company, threatened by the SEC and use its reasonable efforts to prevent the entry of such stop order or to promptly remove it if entered and promptly notify each Selling Holder of such lifting or withdrawal of such order;

(e)  use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities;

(f)  use its reasonable efforts to register or qualify all Registrable Securities covered by such registration statement under the securities or blue sky laws of such jurisdictions as may be necessary and as the Selling Holders or any underwriter of such Registrable Securities shall request, and use its reasonable efforts to obtain all appropriate registrations, permits and consents in connection therewith, and do any and all other acts and things which may be necessary or advisable to enable the Selling Holders or any such underwriter to consummate the disposition in such jurisdictions of the Registrable Securities covered by such registration statement; provided that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any such jurisdiction wherein it is not so qualified or to consent to general service of process in any such jurisdiction or become subject to taxation in any such jurisdiction;

(g)  use its reasonable efforts in the event of an underwritten offering to furnish to each Selling Holder and to any underwriter of such Registrable Securities (i) an opinion of counsel for the Company addressed to each underwriter and each Seller Holder and dated the date of the closing under the underwriting agreement and (ii) a “cold comfort” letter addressed to each underwriter and each Selling Holder and signed by the independent public accountants who have audited the financial statements of the Company included in such registration statement, in each such case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in connection with the consummation of underwritten public offerings of securities;

(h)  as promptly as practicable, notify the Selling Holders in writing (i) at any time when a prospectus relating to a registration pursuant to Section 2.01 or

13

2.02 is required to be delivered under the 1933 Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (i) of any request by the SEC or any other regulatory body or other body having jurisdiction for any amendment of or supplement to any registration statement or other document relating to such offering, and in either such case, subject to clause (iv) of the second proviso to Section 2.01(a) and the sentence immediately following such clause, at the request of the Selling Holders prepare and furnish to the Selling Holders as promptly as practicable a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading (and the Selling Holders agree to immediately discontinue use of the prospectus included in such registration statement following receipt of such notice until such time as such prospectus shall have been so amended or supplemented or such time as the Company shall have provided the Selling Holders with a subsequent notice to the effect that such prospectus may again be used);

(i)  if requested by the lead or managing underwriters or Selling Holders, use its reasonable efforts to list all such Registrable Securities covered by such registration on each securities exchange and automated inter-dealer quotation system on which a class of common equity securities of the Company is then listed;

(j)  upon the Selling Holders’ reasonable request, send appropriate officers of the Company to attend any “road shows” and analyst and investor presentations scheduled in connection with any such registration;

(k)  at the Company’s expense, use its reasonable efforts to cooperate as reasonably requested by the Selling Holders in the marketing of the Registrable Securities; and

(l)  furnish for delivery in connection with the closing of any offering of Registrable Securities pursuant to a registration effected pursuant to Section 2.01 or 2.02 unlegended certificates representing ownership of the Registrable Securities being sold in such denominations as shall be requested by the Selling Holders or the underwriters.

Section 2.05.    Underwriting; Due Diligence.  (a) If requested by the underwriters for any underwritten offering of Registrable Securities pursuant to a

14

registration requested under this Article 2, the Company shall enter into an underwriting agreement with such underwriters for such offering, which agreement will contain such representations and warranties and covenants by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including indemnification and contribution provisions substantially to the effect and to the extent provided in Section 2.06, and agreements as to the provision of opinions of counsel and accountants’ letters to such underwriters and Selling Holders to the effect and to the extent provided in Section 2.04(g). The Selling Holders on whose behalf the Registrable Securities are to be distributed by such underwriters shall be parties to any such underwriting agreement and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters, shall also be made to and for the benefit of such Selling Holders. Such underwriting agreement shall also contain such representations and warranties and covenants by such Selling Holders and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions on the part of selling shareholders, including indemnification and contribution provisions substantially to the effect and to the extent provided in Section 2.06.

(b) In connection with the preparation and filing of each registration statement registering Registrable Securities under the 1933 Act pursuant to this Article 2, upon entering into a confidentiality agreement with the Company that is reasonably satisfactory to the Company, the Company shall give the underwriters, if any, and underwriters’ counsel, and counsel for the Holders as selected pursuant to Section 2.01(f) or by the Selling Holders holding a majority of the Registrable Securities included in the relevant registration statement, as applicable, such reasonable and customary access to its books, records and properties and such opportunities to discuss the business and affairs of the Company with its officers and the independent public accountants who have certified the financial statements of the Company as shall be necessary, in the opinion of such underwriters, such underwriters’ counsel or such counsel for the Holders, to conduct a reasonable investigation within the meaning of the 1933 Act; provided that such underwriters, such underwriters’ counsel and such counsel for the Holders shall use their reasonable best efforts to coordinate any such investigation of the books, records and properties of the Company and any such discussions with the Company’s officers and accountants so that all such investigations occur at the same time and all such discussions occur at the same time.

Section 2.06.    Indemnification and Contribution.  (a) The Company agrees to indemnify and hold harmless each Selling Holder and each person, if any, who controls each Selling Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any and all losses, claims, damages and liabilities (including, subject to Section 2.06(c), any legal or other costs, fees and expenses reasonably incurred in connection with defending or

15

investigating any such action or claim) insofar as such losses, claims, damages or liabilities are caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement at the time it became effective or any amendment thereof, any preliminary prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) relating to the Registrable Securities, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission which is based upon information relating to a Selling Holder or underwriter which is furnished to the Company in writing by such Selling Holder or underwriter expressly for use therein. The Company also agrees to indemnify any underwriter of the Registrable Securities so offered and each person, if any, who controls such underwriter on substantially the same basis as that of the indemnification by the Company of each Selling Holder provided in this Section 2.06(a).

(a)  Each Selling Holder agrees to indemnify and hold harmless the Company, its directors, the officers who sign any registration statement and each person, if any, who controls the Company within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and all losses, claims, damages and liabilities (including, subject to Section 2.06(d), any legal or other costs, fees and expenses reasonably incurred in connection with defending or investigating any such action or claim) insofar as such losses, claims, damages or liabilities are caused by any untrue statement or alleged untrue statement of a material fact contained in such registration statement at the time it became effective or any amendment thereof, any preliminary prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) relating to the Registrable Securities, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to a Selling Holder furnished in writing by or on behalf of such Selling Holder expressly for use in a registration statement, any preliminary prospectus, prospectus or any amendments or supplements thereto. Each Selling Holder also agrees to indemnify any underwriter of the Registrable Securities so offered and each person, if any, who controls such underwriter on substantially the same basis as that of the indemnification by such Selling Holder of the Company provided in this Section 2.06(b). Notwithstanding any other provision of this Section 2.06, no Selling Holder’s obligations to indemnify pursuant to this Section 2.06 shall exceed the amount of net proceeds received by such Selling Holder in connection

16

with any offering of its Registrable Securities. Each Selling Holder’s obligations to indemnify pursuant to this Section are several in the proportion that the net proceeds of the offering received by such Selling Holder bear to the total net proceeds of the offering received by all Selling Holders and not joint.

(c)  Each party indemnified under paragraph (a) or (b) above shall, promptly after receipt of notice of a claim or action against such indemnified party in respect of which indemnity may be sought hereunder, notify the indemnifying party in writing of the claim or action and the indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all fees and expenses in connection therewith; provided that the failure of any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is materially prejudiced by such failure to notify. In any such action, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the sole expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) in the reasonable judgment of such indemnified party representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case the reasonable fees and expenses of such counsel shall be at the sole expense of the indemnifying party. It is understood that the indemnifying party shall not, in connection with any claim or action or related proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Holders as indemnified parties, such firm shall be designated in writing by the indemnified party that had the largest number of Registrable Securities included in such registration. The indemnifying party shall not be liable for any settlement of any claim or action effected without its written consent, which consent shall not be unreasonably withheld or delayed, but if settled with such consent, or if there be a final judgment for the plaintiff, the indemnifying party shall indemnify and hold harmless such indemnified parties from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened claim or action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such proceeding.

(d)  If the indemnification provided for in this Section 2.06 shall for any reason be unavailable (other than in accordance with its terms) or insufficient to

17

an indemnified party in respect of any loss, liability, cost, claim or damage referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, cost, claim or damage (A) as between the Company and the underwriters, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations, and (B) as between (x) the Company and the Selling Holders or (y) the Selling Holders and the underwriters, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company, the Selling Holders and the underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, by a Selling Holder or by the underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by an indemnified party as a result of the loss, cost, claim, damage or liability, or action in respect thereof, referred to above in this paragraph (d) shall be deemed to include, for purposes of this paragraph (d), any legal or other costs, fees and expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. The Company and the Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 2.06 were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. Notwithstanding any other provision of this Section 2.06, no Selling Holder shall be required to contribute any amount in excess of the amount by which the net proceeds of the offering received by such Selling Holder exceed the amount of any damages which such Selling Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Selling Holder’s obligations to contribute pursuant to this Section are several in the proportion that the net proceeds of the offering received by such Selling Holder bear to the total net proceeds of the offering received by all the Selling Holders and not joint. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

(e)  Indemnification and contribution similar to that specified in the preceding paragraphs of this Section 2.06 (with appropriate modifications) shall

18

be given by the Company, the Selling Holders and the underwriters with respect to any required registration or other qualification of securities under any state law or regulation or governmental authority.

(f)  The obligations of the parties under this Section 2.06 shall be in addition to any liability which any party may otherwise have to any other party.

Section 2.07. Rule 144 and Form S-3.  The Company shall use its reasonable efforts to ensure that the conditions to the availability of Rule 144 set forth in paragraph (c) thereof shall at all times be satisfied. Upon the request of any Holder, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements. The Company further agrees to use its reasonable efforts to cause all conditions to the availability of Form S-3 (or any successor form) under the 1933 Act for the filing of registration statements under this Agreement to at all times be satisfied.

Section 2.08. Transfers; Rights of Transferee of Registrable Securities; Legends.  Each Holder agrees not to make any transfer of all or any portion of the Registrable Securities unless and until (a) there is then in effect a registration statement under the 1933 Act covering such proposed transfer and such transfer is made in accordance with such registration statement, (b) such transfer is made in accordance with Rule 144 under the 1933 Act or (c) (i) the transferee (the “Transferee”) has agreed in writing to be bound by these transfer restrictions, (ii) such Holder shall have notified the Company of the proposed transfer and shall have furnished the Company with a reasonably detailed statement of the circumstances surrounding the proposed transfer (but not necessarily the economic terms thereof) and (iii) if reasonably requested by the Company and the Transferee is not an Affiliate of the Holder, such Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such transfer does not require registration of the Registrable Securities under the 1933 Act. Subject to compliance with clause (c) of the immediately preceding sentence, the Transferee of Registrable Securities will be deemed a Holder hereunder as soon as the Company receives (i) written notice stating the name and address of the Transferee and identifying the number of Registrable Securities transferred and (ii) a written agreement, in form and substance acceptable to the Majority Holders, from such Transferee to the Company whereby such Transferee agrees to be bound by the terms of this Agreement. Certificates representing Registrable Securities shall bear a legend referring to this Agreement and the transfer restrictions contained herein.

Section 2.09. “Market Stand-Off” Agreement.  Each Holder hereby agrees that such Holder shall not sell, transfer, make any short sale of, grant any option for the purchase, or enter into any hedging or similar transaction with the same economic effect as a sale, of any Common Stock or securities convertible into or exercisable for Common Stock held by such Holder (other than the sale pursuant

19

to the registration statement of those securities included in the registration) for 90 days (or such lesser period as the lead or managing underwriters may permit) after the effective date of a registration statement for an underwritten public offering of any of the Company’s equity securities (or the commencement of the offering to the public of any of the Company’s equity securities in the case of a Rule 415 Offering). Each Holder agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto.

Section 2.10. Inconsistent Agreements.  The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement.

Section 2.11. 1999 Stockholders Agreement.  The Company and the Syngenta Parties hereby agree that in consideration for the existing shares of Common Stock held by the Syngenta Parties and their Affiliates as of the date of the Transaction Agreement being included as “Registrable Securities” under this Agreement, neither the Company nor the Syngenta Parties shall treat such shares as being subject to the 1999 Stockholders Agreement.

ARTICLE 3

MISCELLANEOUS

Section 3.01. Remedies. Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.

Section 3.02. Consents to Amendments.  The provisions of this Agreement may be amended, modified or waived only upon the prior written consent of the Company and holders of at least a majority of the Registrable Securities held by all Holders. No course of dealing between the Company and any Holder or any delay by the Company or such Holder in exercising any rights hereunder shall operate as a waiver of any rights of the Company or such Holder.

Section 3.03. Successors and Assigns.  All covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind

20

and inure to the benefit of the respective successors and permitted assigns of the parties hereto whether so expressed or not; provided that the Company may not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of holders of at least a majority of the Registrable Securities held by all Holders.

Section 3.04. Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

Section 3.05. Counterparts.  This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.

Section 3.06. Descriptive Headings; Interpretation.  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. The use of the words “include” or “including” in this Agreement shall be by way of example rather than by limitation. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with its terms.

Section 3.07. Governing Law.  This Agreement shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law rules of such state.

Section 3.08. Jurisdiction.  Except as otherwise expressly provided in this Agreement, the parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the United States District Court for the Southern District of New York or any New York State court sitting in New York City, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in

21

any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 3.10 shall be deemed effective service of process on such party.

Section 3.09. WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 3.10. Addresses and Notices.  All notices, requests or other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given,

if to the Company, to:

Diversa Corporation

4955 Directors Place

San Diego, California 92121

Attention: Karin Eastham Fax:

858-526-5605

with a copy to:

Cooley Godward LLP

4401 Eastgate Mall

San Diego, California 92121

Attention: Carl R. Sanchez, Esq.

Fax: 858-550-6420

if to the Syngenta Parties, to:

Syngenta Participations AG

Schwarzwaldallee 215

CH-4002 Basel

Switzerland

Attention: President

Fax: (41) 61-323-7571

22

with a copy to:

Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Attention: Louis Goldberg, Esq.

Fax: (212) 450-3800

and if to any other Holder, to the address or facsimile set forth on the books of the Company or any other address or facsimile number as a party may hereafter specify for such purpose to the Company. Notwithstanding the foregoing, no Holder or its counsel shall be entitled to notice if such Holder holds less than 1% in the aggregate of the Registrable Securities held by all Holders.

All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.

Section 3.11. Business Days.  If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the state in which the Company’s chief executive office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday.

Section 3.12 Effectiveness.  This Agreement shall be effective upon the Closing.

23

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

SYNGENTA PARTICIPATIONS AG
By:	/s/    Adrian C. Dubock
	Name:    Adrian C. Dubock Title:      Head: Mergers &Acquisitions,                Ventures and Licensing

By:	/s/    Marian T. Flattery
	Name:    Marian T. Flattery Title:      Head of Global Intellectual Property

TORREY MESA RESEARCH INSTITUTE
By:	/s/    Adrian C. Dubock
	Name:    Adrian C. Dubock Title:      Attorney in fact

SYNGENTA SEEDS AG
By:	/s/    Adrian C. Dubock
	Name:    Adrian C. Dubock Title:      Head:  Mergers &                Acquisitions, Ventures and Licensing

By:	/s/    Marian T. Flattery
	Name:    Marian T. Flattery Title:      Head of Global Intellectual Property

DIVERSA CORPORATION
By:	/s/    Jay M. Short
	Name:    Jay M. Short Title:      CEO

24

EX-10.46

***Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4),

200.83 and 240.24b-2

Exhibit 10.46

AMENDED AND RESTATED RESEARCH COLLABORATION AGREEMENT

BETWEEN

DIVERSA CORPORATION

AND

SYNGENTA PARTICIPATIONS AG

January 3, 2003

TABLE OF CONTENTS

		Page
1	Definitions	2
2	Research Program	10
	2.1 Research	10
	2.2 Projects and Project Research	11
	2.3 Directed Research	19
	2.4 Research Plan	19
	2.5 Staffing Level	21
	2.6 Research Funding	21
	2.7 Use of Materials and Syngenta Proprietary Technology	25
3	Research Committee	26
	3.1 Representatives	26
	3.2 Responsibilities	26
	3.3 Decision Making	27
	3.4 Meetings	28
	3.5 Records and Reports	28
4	Exclusivity and Other Covenants	29
	4.1 Diversa Exclusivity Obligations	29
	4.2 Mutual Exclusivity Obligations	32
	4.3 Diversa Third Party Projects	33
	4.4 Syngenta Agreement	33
5	Research Milestone Payments	35
	5.1 Project Milestones	35
	5.2 Milestone Payments	36
6	Royalties	36
	6.1 Royalty Rate	36
	6.2 Cumulative Royalty	37
	6.3 Net Revenue Adjustment	37
	6.4 Non-Cash Revenue	37
	6.5 Duration of Royalties	38
	6.6 Third Party Royalties	38
	6.7 Withholding Taxes	39
7	Books and Records	39
	7.1 Reports and Payments	39
	7.2 Payment Method; Late Payments	40
	7.3 Currency Conversion	40
	7.4 Restrictions on Payment	40
	7.5 Records; Inspection	40

8	Intellectual Property	41
	8.1   Ownership of Existing Intellectual Property and Improvements	41
	8.2   Ownership of New Intellectual Property and Research Results	41
	8.3   Ownership Dispute	42
	8.4   License of Platform Technology and Biomolecules	43
	8.5   Research License	45
	8.6   Filing of Patents	45
	8.7   Patent Enforcement	46
	8.8   Third Party Infringement	47
	8.9   No Unauthorized Use	48
	8.10  No Implied Licenses	48
9	Representations and Warranties	48
	9.1    Legal Authority	48
	9.2   No Conflicts	48
	9.3   Disclaimer of Warranties	49
10	Confidentiality	49
	10.1  Confidential Information	49
	10.2  Permitted Disclosures	50
	10.3  Publicity	51
	10.4  Publication	51
11	Indemnification	52
	11.1  Syngenta	52
	11.2  Diversa	52
	11.3  Procedure	53
12	Term and Termination	53
	12.1  Term and Termination of Research Program	53
	12.2  Term and Termination of Agreement	54
	12.3  Termination for Material Breach	54
	12.4  Termination for Bankruptcy	55
	12.5  Termination for Change in Control of Diversa	55
	12.6  Effect of Termination	56
	12.7  Survival	56
	12.8  Rights in Bankruptcy	56
13	Dispute Resolution	57
	13.1  Acknowledgement	57
	13.2  Consultation	57
	13.3  Arbitration	57
14	Miscellaneous	60
	14.1  Governing Law	60
	14.2  Waiver	60
	14.3  Assignment	60
	14.4  Notices	61

ii

14.5	Force Majeure	62
14.6	Independent Contractors	63
14.7	Advice of Counsel	63
14.8	Severability	63
14.9	Compliance with Laws	63
14.10	Entire Agreement	63
14.11	Headings	63
14.12	Binding Effect	64
14.13	Counterparts	64
Exhibit A - Platform Technology Patent Applications
Exhibit B - Project List as of Effective Date
Exhibit C - Patent Strategy Cooperation Procedures

iii

AMENDED AND RESTATED RESEARCH COLLABORATION AGREEMENT

This AMENDED AND RESTATED RESEARCH COLLABORATION AGREEMENT (the “Agreement”), entered into as of January 3, 2003 and effective as of the closing of the transactions contemplated by the Transaction Agreement (as defined below) (the “Effective Date”), is made by and between Syngenta Participations AG, a corporation organized under the laws of Switzerland, with offices at CH-4002, Basel, Switzerland (“Syngenta”), and Diversa Corporation, a Delaware corporation, with offices at 4955 Directors Place, San Diego, California, 92121-1609 (“Diversa”).

BACKGROUND

A.    WHEREAS Diversa has a business based on gene diversity, gene enhancement, and chemical, industrial, agricultural and pharmaceutical applications and desires to become more focused on pharmaceutical applications, while continuing to exploit its research, chemical and industrial business opportunities;

B.    WHEREAS Syngenta and its Affiliates (as defined herein) have a business engaged primarily in the discovery, development, and commercialization of agricultural chemicals, plant traits, seeds, and products for the food, feed and natural fiber markets, and has certain technology and expertise related to functional genomics and systems biology incorporating gene sequencing, proteomics, metabolomics, RNA dynamics, the ability to analyze and interpret these systems, and bioinformatics software;

C.    WHEREAS Diversa has entered into an agreement to acquire certain assets of Syngenta’s Affiliate Torrey Mesa Research Institute (“TMRI”) and to enter into a license agreement with Syngenta to use certain technology for the purposes set forth therein in exchange for shares of Diversa common stock and a warrant to acquire additional shares of Diversa common stock to be issued to Syngenta or its designee;

D.    WHEREAS (i) Syngenta and Diversa have entered into the Research Collaboration Agreement dated as of December 3, 2002 (as amended, the “Existing Agreement”) in order to collaborate in the Syngenta Exclusive Field (as defined herein) to discover and develop new Biomolecules and Products (as such terms are defined herein) based on such Biomolecules utilizing the technology licensed by Syngenta to Diversa as well as Diversa’s technology and expertise and (ii) Syngenta and Diversa wish to replace the Existing Agreement with this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the Parties hereby agree as follows:

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1.    DEFINITIONS

The following capitalized terms shall have the meanings indicated for purposes of this Agreement:

1.1    “Affiliate” means any corporation, firm, limited liability company, partnership or other entity that directly or indirectly controls or is controlled by or is under common control with a Party to this Agreement. As used in this definition, control means ownership, directly or through one or more Affiliates, of more than fifty percent (50%) of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or more than fifty percent (50%) of the equity interests in the case of any other type of legal entity, status as a general partner in any partnership, or any other arrangement whereby a Party controls or has the right to control the Board of Directors or equivalent governing body of a corporation or other entity, or if such level of ownership or control is prohibited in any country, any entity owning or controlling at the maximum control or ownership right permitted in the country where such entity exists.

1.2    “Animal Feed Field” means the use of Biomolecules for feed applications to alter, modify or improve feed conversion and/or animal nutrition, but excluding all vaccines and therapeutic applications and any part of such field to which rights have been granted to Zymetrics or Syngenta or any of its Affiliates under the Zymetrics Agreements.

1.3    “Biomolecule” means any Gene and RNA and protein or chemical entity the synthesis of which is directed by such Gene or Gene pathway, which protein or chemical entity was produced by an organism.

1.4    “Change in Control” means any of the following transactions: (a) a merger, reorganization, restructuring, or consolidation of Diversa which results in the holders of the voting securities of Diversa outstanding immediately prior thereto ceasing to hold at least […***…] of the combined voting power of the surviving entity or its parent immediately after such merger, reorganization, or consolidation; (b) the sale or transfer which is effectively a sale of all or substantially all of the assets of Diversa; or (c) any one person (other than Diversa, any trustee or other fiduciary holding securities under an employee benefit plan of Diversa, or any corporation owned directly or indirectly by the stockholders of Diversa, in substantially the same proportion as their ownership of stock of Diversa), together with any such person’s “affiliates” or “associates”, as such terms are used in the Securities Exchange Act of 1934, as amended, becoming the beneficial owner of […***…] of the combined voting power of the outstanding securities of Diversa or by contract or otherwise having the

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right to control the Board of Directors or equivalent governing body of Diversa or the ability to cause the direction of management of Diversa.

1.5      “CPI” or “Consumer Price Index” means the Consumer Price Index, All Urban Consumers, as published by the U.S. Bureau of Labor Statistics.

1.6      “Control”, “Controls”, or “Controlled” means possession of the ability to grant the licenses or sublicenses as provided for herein (other than by virtue of any license granted pursuant to this Agreement or the License Agreement) without violating the terms of any agreement or other arrangement with any Third Party.

1.7      “Core Country” means each of the United States, Canada, Japan, and any country in the European Union for which patent protection can be obtained through the European Patent Office.

1.8      “Crop” means any cultivated Plant.

1.09    “Directed Research” means the research activities which: (i) are funded by Syngenta pursuant to this Agreement, and (ii) are not intended to result in a product, per se.

1.10    “Diversa Commitments” means those contractual obligations to Third Parties entered into by Diversa, certain other Diversa projects involving Third Parties under the terms negotiated or agreed, which projects were committed to by Diversa or under substantially advanced negotiations with the Third Parties, and Diversa’s internally funded activities (other than its internally funded projects related to […***…]), in each case as of October 25, 2002, which Diversa has disclosed to Syngenta in writing prior to the date of the Transaction Agreement together with the Permitted Amendments.

1.11    “Diversa Materials” means all Materials Controlled by Diversa which Diversa makes available for use in the Research Program.

1.12    “Diversa Product” means any product sold or licensed, or being developed for sale or license, by Diversa or its Affiliates or Sublicensees which is generated pursuant to Section 2.2(j)(iv) herein for use outside the Syngenta Exclusive Field.

1.13    “Diversa Proprietary Genes” means Genes which are or were discovered or owned by Diversa, and the discovery of which was not funded, in whole or in

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part, by a Third Party, directly or indirectly, and are not discovered or identified under the Research Program.

1.14    “Fermentation” means a microbial fermentation process.

1.15    “FTE” means a full time scientist who is an employee or consultant of Diversa (or in the case of less than a full-time dedicated scientist, a full-time, equivalent scientist year), dedicated to research under the Research Program consisting of an average of […***…] person-hours per year and who are educated to Ph.D., MS or BS level (or otherwise appropriately trained) in an appropriate discipline.

1.16    “GAAP” means generally accepted accounting principles, as applied in the United States.

1.17    “Gene” means a polynucleotide sequence which can be transcribed into RNA and generally encodes a protein, optionally together with its regulatory sequences.

1.18    “Know-How” means all proprietary ideas, inventions, data, instructions, processes, trade secrets, devices, methods, formulae, Materials, protocols and marketing and other information, including improvements thereon, whether or not patentable, including, without limitation, biological, chemical, toxicological, physical and analytical, safety, manufacturing and quality control data and information, which are not publicly available and not covered by Patent Rights, but which are necessary or useful for the commercial exploitation of the Patent Rights or the conduct of the Projects or otherwise relate to Biomolecules or Products, and are Controlled by a Party or its Affiliate as of the Effective Date or thereafter if based on or derived from information or inventions generated in the course of the Research Program.

1.19    “License Agreement” means that certain Intellectual Property Rights License Agreement of even date herewith entered into between Diversa and Syngenta in conjunction with this Agreement.

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1.20    “Materials” means any chemical or biological substances, including, without limitation, any: (i) organic or inorganic chemical element or compound; (ii) Gene or genetic material, including any genetic control element (e.g., promoters); (iii) Biomolecule; (iv) vector or construct, plasmid, phage or virus; (v) host organism, including bacteria and Plant cells; (vi) eukaryotic or prokaryotic cell line or expression system; (vii) protein, including any peptide or amino acid sequence, enzyme, antibody or protein conferring targeting properties and any fragment of a protein or peptide or enzyme; or (viii) assay or reagent.

1.21    “Net Revenue” means Revenue, less the following amounts with respect to the applicable Product, to the extent not previously deducted: trade and quantity discounts and returns and […***…] actually granted to purchasers or licensees, and less taxes withheld (excluding income tax), customs and freight charges, and calculated using the applicable Party’s standard accounting procedures in accordance with GAAP, as consistently applied by such Party.

1.22    “Party” means Syngenta or Diversa, as applicable, and the “Parties” means Syngenta and Diversa.

1.23    “Patent Rights” means any United States or foreign patent or patent application, and any division, continuation, continuation-in-part, reissue, reexamination, extension or other governmental action that extends the subject matter of such patent or patent application, substitution, confirmation, registration or revalidation of the foregoing, in each case, that claims a Biomolecule or a Product or a method or process for the manufacture or use thereof and that is Controlled by Syngenta or Diversa or their respective Affiliates, or jointly by Syngenta and Diversa as of the Effective Date or thereafter for inventions made in the course of the Research Program.

1.24    “Permitted Amendments” means any modification or amendment to any Diversa Commitment or Syngenta Commitment, as the case may be, that would not […***…] as disclosed by Diversa to Syngenta, in the case of Diversa Commitments, and as disclosed by Syngenta to Diversa, in the case of Syngenta Commitments, in writing prior to the date of the Transaction Agreement in a manner that would […***…] under this Agreement.

1.25    “Plant” means a […***…] plant, or an […***…].

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1.26    “Plant Gene” means a Gene which is native to a Plant.

1.27    “Platform Technology” means all tools, technologies and methods relating to proteomics, metabolomics, RNA dynamics and bioinformatics and methods to analyze and link these components of genomics, which are both (i) not publicly available and are proprietary to or Controlled by Syngenta or its Affiliates immediately prior to the closing of the transactions under the Transaction Agreement, and (ii) claimed or disclosed within the patent applications and patents listed on Exhibit A or are within the scope of the material trade secrets related thereto, a written description of such material trade secrets having been previously provided by Syngenta to Diversa.

1.28    “Platform Technology Improvement” means any enhancement or improvement to the Platform Technology, whether or not patentable, made, conceived or reduced to practice solely by any employee or consultant of Syngenta, solely by any employee or consultant of Diversa or jointly by any employee or consultant of Syngenta and any employee or consultant of Diversa, and all Patent Rights and Know-How that claim, disclose or cover such enhancement or improvement.

1.29    “Preferred Supplier Period” means the period commencing on the Effective Date and continuing for that portion of the […***…].

1.30    “Product” means a Diversa Product or a Syngenta Product, as applicable.

1.31    “Program Materials” means all Materials which are developed or made, or the utility of which is determined or discovered, pursuant to the Research Program, excluding Diversa Materials and Syngenta Materials.

1.32    “Program Technology” means all Research Results and Program Materials, and Patent Rights and Know-How claiming, disclosing or covering such Research Results or Program Materials but excluding either Party’s proprietary technology and improvements and intellectual property rights therein which are retained by such Party under Section 8.1.

1.33    “Project” means each specific project in the Syngenta Exclusive Field undertaken, or initially undertaken, in the Research Program as set forth in Section 2.2, which are described in Exhibit B, as may be updated from time to time as provided in this Agreement, including without limitation the active Projects and the Reserved Projects and

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the new protein therapeutic projects undertaken in accordance with, and subject to the terms of, Section 2.2(c).

1.34    “Project List” means those Projects which are described in Exhibit B hereto as may be updated from time to time as provided in this Agreement.

1.35    “Project Plan” has the meaning set forth in Section 2.2(a).

1.36    “Project Research” means those research and development activities conducted pursuant to the Research Program with respect to Projects.

1.37    “Research Committee” shall have the meaning set forth in Section 3.1(a).

1.38    “Research Plan” means a written plan describing the activities to be carried out during each Year of the Research Term, as modified from time to time by the Parties pursuant to this Agreement.

1.39    “Research Program” means the research and development program to be conducted pursuant to Section 2 and as described in the applicable Research Plan.

1.40    “Research Results” means all data and results arising out of the Research Program.

1.41    “Research Term” shall have the meaning set forth in Section 12.1.

1.42    “Reserved Projects” shall have the meaning set forth in Section 2.2(a).

1.43    “Revenue” means all gross sales invoiced, or other consideration or value and payments received, by a Party and its Affiliates in each case, for the use or sale of any Syngenta Product or Diversa Product as the case may be, including, without limitation, […***…] Syngenta Products or Diversa Products, as applicable. Revenue shall be calculated using the Party’s standard accounting procedures in accordance with GAAP, as consistently applied by the Party. All sales or licenses of Products between a Party and any of its Affiliates shall be […***…]; provided that if such […***…] the following shall apply: If the Affiliate  […***…], and […***…], then the gross sales invoiced, or other consideration or value and payments received, […***…] shall be used to determine Revenue, and all […***…]

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[…***…]. If the Affiliate […***…], and […***…], then […***…] which shall be used as the […***…], and the […***…]; provided that if the […***…], then the […***…] and all […***…]. The calculation of Revenue shall be subject to the provisions of Sections 6.3 and 6.4.

1.44    “Sublicensee” means (i) with respect to Syngenta, a Third Party which receives from Syngenta or its Affiliate a license or sublicense, and (ii) with respect to Diversa, a Third Party which receives from Diversa or its Affiliate a license or sublicense.

1.45    “Syngenta Commitments” means those contractual obligations to Third Parties entered into by Syngenta or its Affiliates and certain other draft agreements or projects of Syngenta or its Affiliates involving Third Parties under the terms negotiated or agreed under substantially advanced negotiations with Third Parties as of October 25, 2002, which Syngenta has disclosed to Diversa in writing prior to the date of the Transaction Agreement together with the Permitted Amendments.

1.46    “Syngenta Exclusive Field” means

(a)    any Biomolecule with Plants as the expression host;

(b)    any Plant Gene;

(c)    any Biomolecule for admixture to the product of any physical or chemical processing of Crops or derivatives of Crops provided that the product contains Plant material unique to Plants;

(d)    any Biomolecule for any industrial application involving Crops or the close derivatives of Crops, but excluding inert or minor ingredients from or derived from a Plant source which do not materially add value to an end product of an industrial manufacturing process;

(e)    any Biomolecule useful for Syngenta’s actual or potential customers in the agriculture, food and/or natural fibers markets involving the use of Crops, or the use of close derivatives of Crops (including all uses of corn, wheat, barley, rice, cotton and soy, and other oil Crops and their close derivatives), but excluding inert or minor

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ingredients from or derived from a Plant source which do not materially add value to an end product of an industrial manufacturing process;

(f)    any Biomolecule with commercial value, alone or in combination with other Biomolecules, for use in the Animal Feed Field; and

(g)    any Project described in the Project List including those not covered under Section 1.46(a)-(f) and including the new protein therapeutic projects undertaken in accordance with, and subject to the terms of, Section 2.2(c).

1.47    “Syngenta Materials” means all Materials Controlled by Syngenta or its Affiliates which Syngenta or any of its Affiliates provides to Diversa for use in the Research Program; for clarification, Syngenta Materials shall exclude all Materials, if any, included in the Purchased Assets under the Transaction Agreement.

1.48    “Syngenta Product” means any product sold or licensed, or being developed for sale or license, by Syngenta or its Affiliates or Sublicensees which consists of, incorporates, or is made through the use of a Biomolecule that is discovered, identified or developed, or the utility of which is discovered or identified, in the course of the Research Program or using Program Technology. Syngenta Products do not include any product that is discovered, identified or developed, or the utility of which is discovered or identified, using Syngenta Proprietary Technology outside the course of the Research Program without the use of any Program Technology.

1.49    “Syngenta Proprietary Technology” means all technology Controlled by Syngenta or its Affiliates immediately after the Effective Date, or thereafter independently of the Research Program, and which Syngenta uses or makes available for the conduct of the Research Program or the design, development, testing, use, manufacture or sale of Syngenta Products, including all such United States and foreign patents and patent applications (including, without limitation, all reissues, extensions, substitutions, confirmations, registrations, revalidations, additions, continuations, continuations-in-part, and divisions thereof) and other proprietary information, data and know-how. Syngenta Proprietary Technology includes the “TMRI Intellectual Property Rights” (as defined in the License Agreement), if and only to the extent that Syngenta determines that such TMRI Intellectual Property Rights should be used in the Research Program and grants Diversa a license to use such TMRI Intellectual Property Rights in the Syngenta Exclusive Field under the terms and conditions set forth in Section 8.5 hereof. Syngenta Proprietary Technology excludes all TMRI Intellectual Property Rights which are licensed to Diversa by Syngenta under the License Agreement, including without limitation the Platform Technology licensed thereunder, and the Platform Technology Improvements.

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1.50    “Third Party” means any party other than Syngenta, Diversa or an Affiliate of either of them.

1.51    “TMRI Corp.” means Torrey Mesa Research Institute, a Delaware corporation.

1.52    “Transaction Agreement” means that certain Transaction Document, dated of even date herewith, entered by TMRI Corp., Diversa and Syngenta, as may be amended in accordance with its terms.

1.53    “Transgenics” means Plants whose genome contains nucleotide(s) sequence(s) inserted using molecular biology techniques.

1.54    “Year” means any consecutive 12 month calendar year period.

1.55    “Zymetrics” means Zymetrics, Inc.

1.56    “Zymetrics Agreements” means the Research and Development Agreement between Diversa and Zymetrics, dated December 1, 1999, as may be amended or extended in accordance with its terms, and the Joint Venture Agreement between Diversa and Syngenta Seeds AG, dated December 1, 1999, as may be amended or extended in accordance with its terms.

2.    RESEARCH PROGRAM

2.1    Research.  Diversa will diligently conduct research and development activities pursuant to the Research Plan as set forth herein with the primary objective of conducting Project Research to identify and develop Syngenta Products in the Syngenta Exclusive Field and of conducting Directed Research for Syngenta.

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2.2    Projects and Project Research.

(a)    Diversa will diligently conduct Project Research as specified in the Research Plan. Diversa shall conduct the Research Program in a professional manner and shall use commercially reasonable efforts to meet the time schedules contemplated in the Research Plan. The activities conducted in connection with the Research Program will be overseen and administered by the Research Committee as provided in Sections 2 and 3. The Project List includes both Projects which are expected to be undertaken initially and those which could be undertaken when the initial group of Projects are completed and/or abandoned as provided herein (the “Reserved Projects”). Each Project at its initiation shall include a plan that covers the objectives (including definition of Product or product concept), targets, the estimated resources including estimated FTEs, overall timetable, the Milestones applicable to the Project (as defined in Section 5.1, subject to Section 2.2(c) with respect to the Milestones and payments related thereto with respect to certain new protein therapeutic projects) and other applicable criteria related to achievement of Milestones in accordance with Section 5.1 (subject to Section 2.2(c) with respect to certain new protein therapeutic projects), and other matters as may be determined by the Research Committee, as may be amended in accordance with the terms of this Agreement (the “Project Plan”).

(b)    The Research Committee shall review the Project List including the Reserved Projects from time to time and make recommendations to Syngenta of changes to the list to add, terminate, transfer outside the Research Program, modify, reorder the priority of, or substitute Projects, including the Reserved Projects, as necessary or advisable in their reasonable judgment; provided that any new Project or modification to a Project must be within the scope of Section 1.46(a)-(f), unless otherwise agreed by the Parties in writing. Both Diversa and Syngenta may propose Projects for consideration for inclusion on the Project List and for making a Reserved Project an active Project. Diversa and Syngenta agree that Projects may include […***…] projects in each case as may be mutually agreed. By […***…], the Parties will agree in good faith […***…]; if they mutually agree in writing […***…].

(c)    (i) During the Research Term, at Syngenta’s request, Diversa shall be required to undertake Projects under this Agreement which are new protein therapeutic projects utilizing Plant expression (over and above the Projects on the Project

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List as of the Effective Date); provided that Diversa shall have no obligation to undertake a particular new protein therapeutic project if at the time of the request to undertake a particular new protein therapeutic project, […***…], or […***…]. The Parties agree to commence a new protein therapeutic project which is an antibody project or which optimizes an existing antibody in Year one of the Research Term. Notwithstanding any other provision of this Agreement to the contrary, […***…] provided that […***…]; provided, however that nothing shall prevent Third Parties from manufacturing in Plants. The royalty rate applicable to the Syngenta Products which are developed from such new protein therapeutic projects shall be the […***…] rate as set forth in Section 6.1. For any new protein therapeutic projects, the […***…] shall not […***…], $[…***…], and $[…***…]; provided that the […***…] for both new protein therapeutic projects and existing biopharma projects on the Project List as of the Effective Date shall not […***…] unless otherwise agreed in writing. The Parties may agree in good faith to […***…].

(ii)  Notwithstanding anything to the contrary in Section 5.1, the Milestones and Milestone payments under Section 5.1 with respect to the new protein therapeutic projects undertaken in accordance with this Section 2.2(c) shall be based on the following schedule and the criteria set forth below and in the applicable Project Plan:

1.    […***…]

$[…***…]

2.    […***…]

$[…***…]

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[…***…]

3.    […***…]

(a)        […***…]

(b)        […***…]

(c)        […***…]

(d)        […***…]

Stage	[…***…] […***…]	Milestone Payment
[…***…]	[…***…]	[…***…]
	[…***…]	[…***…]
	[…***…]	[…***…]
	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]
	[…***…]	[…***…]
	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]
	[…***…]	[…***…]
	[…***…]	[…***…]

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[…***…]	[…***…]	[…***…]
	[…***…]	[…***…]
	[…***…]	[…***…]

At the initiation of the Project, the Parties will agree in good faith on the […***…].

Syngenta agrees that Diversa will not be responsible for the cost of clinical trials.

(iii)  […***…]

(iv)  If Syngenta in its discretion elects […***…], Diversa shall have the […***…] on terms and conditions to be agreed in good faith by the Parties. If the parties are unable to reach

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agreement […***…]. For the avoidance of doubt, this […***…].

(d)    Except as may otherwise be expressly set forth in this Agreement, all decisions to add, terminate, modify, reorder the priority or substitute Projects, and the allocation of resources with respect thereto, shall be made […***…]; provided that any new Project or modification to a Project shall be within the scope of Section 1.46(a)-(f) or the protein therapeutic area as set forth in Section 2.2(c), unless otherwise agreed by the Parties in writing; provided further that allocation of resources to the Research Program shall be subject to Section 2.4(d). Subject only to the Diversa Commitments and subject to those Diversa Commitments only for the duration of such Diversa Commitments with the applicable Third Party or in the case of Diversa internally funded projects until the formal termination of such project (which shall be promptly communicated by Diversa to Syngenta), during the period of time before Diversa’s obligations under Section 4.1(a) have terminated, Diversa shall be required to undertake any Project proposed by Syngenta in Section 1.46(a)-(f) of the definition of Syngenta Exclusive Field and to prioritize such Project as determined by Syngenta. During the remainder of the Research Term, Diversa will be required to undertake such Project(s) so long as it is not under a conflicting contractual obligation with a Third Party or has not planned to undertake within […***…] or undertaken an internally funded conflicting project as established by written evidence of such project or plan prior to Syngenta’s proposing such Project(s). All changes to the Project List, including the changes in the active Projects and the Reserved Projects, shall be in writing and shall amend the Research Plan. Subject to the following sentence, Diversa’s obligations under this Agreement are subject to the Diversa Commitments, and Syngenta acknowledges that Diversa has disclosed the Diversa Commitments in writing to Syngenta pursuant to Section 9.2(b). Notwithstanding anything in this Agreement to the contrary, including without limitation Diversa’s commitments under the Diversa Commitments, Diversa shall be obligated at Syngenta’s request to undertake the Projects in the Project List attached hereto as Exhibit B as of the Effective Date.

(e)    If Syngenta desires to produce a Syngenta Product through Fermentation, Diversa will be the preferred supplier to Syngenta to provide manufacturing services to produce the Syngenta Product through Fermentation, if Syngenta elects to

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commercialize such product in its sole discretion, provided that the following conditions are met: (i) Diversa’s proposal for such manufacturing services is commercially reasonable compared to a similar proposal for services provided by an independent Third Party, and (ii) within […***…] of receipt of Syngenta’s notice of its intent to commercialize such microbial product, Diversa has advised Syngenta in writing of its willingness to provide such services and the charges therefore […***…]. Syngenta shall treat the nature and content of Diversa’s proposal for such services as Diversa’s Confidential Information in accordance with Section 10 hereof. In order for Diversa to provide its proposal for the manufacturing services for a given microbial Syngenta Product, Syngenta will provide to Diversa in writing at the time of its notice of intent to commercialize a Syngenta Product, […***…]. Syngenta shall notify Diversa in writing within […***…] after receipt of such proposal from Diversa, including the charges for its services, whether or not Diversa has met the two conditions set forth above. If the conditions have been met and Syngenta proceeds toward commercialization of the product, then the Parties will enter into a manufacturing services agreement to be negotiated in good faith between the Parties; if the Parties are unable to reach agreement within […***…] of Syngenta’s delivery of notice to Diversa, Syngenta shall be free to initiate contract negotiations and enter into a contract with a Third Party for such manufacturing services […***…]. […***…]. The obligation to offer Diversa the opportunity to provide manufacturing services under this Section 2.2(e) shall terminate upon termination of the Preferred Supplier Period. Diversa shall have no obligation to license any technology or Patent Rights or other rights to any Third Party or to Syngenta to enable Syngenta or such Third Party to provide manufacturing services to Syngenta except as expressly provided in Section 8.

(f)    Notwithstanding anything herein to the contrary, neither Party shall, without such Party’s consent, be obligated to conduct Projects in the Research Program outside the Syngenta Exclusive Field defined in Sections 1.46(a)-(f) except for those Projects set forth in the Project List.

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(g)    At such time as research commences under the Research Program with respect to a particular Reserved Project, it shall be treated as an active Project for all purposes of this Agreement.

(h)    Syngenta shall have the sole discretion whether or not to progress a Project and/or to develop and/or commercialize a Syngenta Product. If Syngenta decides to progress a Project and/or to develop and/or to commercialize a Syngenta Product, it shall have the sole discretion as to how it is developed and/or commercialized and on what terms, including without limitation how it is produced (whether it is produced Transgenically, through Fermentation, or otherwise).

(i)    At such time as a Project is proposed to be conducted under the Research Program, the Party proposing the Project shall inform the Research Committee, to the extent it is able to do so without breaching any confidentiality obligations, of any information of which it is aware with respect to Third Party patent applications or patents which may relate to the Project; provided that neither Party shall have any obligation to provide the Research Committee with any document or other information which would result in a breach of the attorney/client privilege with respect thereto. Prior to the execution of this Agreement, to the extent that Diversa may do so without compromising its confidentiality obligations to Third Parties, Diversa shall provide Syngenta with an accurate and complete description of the Diversa Commitments, including any obligations to Third Parties or restrictions on its research, development or commercialization of products for Syngenta in the Syngenta Exclusive Field. To the extent Diversa may do so without compromising its confidentiality obligations, Diversa will provide independent counsel selected by Syngenta and agreed upon by Diversa with true and correct copies of relevant provisions of all such relevant contracts and any amendments thereto, obligations, and internally funded activities, prior to execution of this Agreement. If copies are provided to Syngenta’s designees, the designees shall be entitled to advise Syngenta whether there are restrictions in such agreements that would affect Diversa’s ability to perform under this Agreement, including a description of such restrictions. Any review by such independent counsel of such agreements shall not act as a waiver of Diversa’s obligations with respect to its warranty under Section 9.2(b). From October 25, 2002 and during the term of this Agreement, Diversa has not and shall not enter into any agreement or other instrument, and has not undertaken and shall not undertake any internally funded projects which conflict with, impair, restrict or diminish its ability to afford to Syngenta the rights and benefits contemplated by this Agreement or to otherwise perform under and consummate the transactions contemplated by this Agreement other than the Diversa Commitments.

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(j)    As part of the Project Research, and as set forth in the Project List, at Syngenta’s request, Diversa agrees to screen its natural products collections for uses in the Syngenta Exclusive Field. For purposes of this Section 2.2(j) only, […***…]. The Parties expect that such Project will require […***…]. If Diversa screens its natural products under such Project and a Biomolecule(s) meeting the Project Plan criteria is discovered, then the following shall apply:

(i)      Diversa will notify Syngenta in accordance with the Project Plan.

(ii)     Diversa will provide Syngenta with samples of the Biomolecule for analysis and with such other materials and information to evaluate the Biomolecule.

(iii)    Syngenta may synthesize chemical leads around the Biomolecule and will own all Patent Rights with respect to any chemical leads and related Products it invents. Such Product(s) it invents arising from the chemical synthesis related to such Biomolecule(s) will be Syngenta Products under this Agreement and royalties will be payable by Syngenta to Diversa thereon; provided that the royalty rate shall be the […***…]. Syngenta shall develop or commercialize such leads and related products outside the Syngenta Exclusive Field only pursuant to the following provisions: […***…]. Diversa shall then have the option to develop and commercialize such product outside the Syngenta Exclusive Field on terms and conditions to be mutually agreed in good faith. Diversa shall give Syngenta written notice of its exercise of this option in good faith within […***…] of its receipt of written notice from Syngenta. If the Parties are unable to agree in good faith, then […***…]. If Diversa does not give written notice to Syngenta of its exercise of its option as set forth above, then Syngenta, on its own or with a Third Party, shall be free to develop and commercialize such product for use outside the Syngenta Exclusive Field in its discretion, with the understanding that such product will be a Syngenta Product as provided in this Section 2.2(j)(iii).

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(iv)      Ownership and license rights to the Biomolecule and the Patent Rights with respect thereto shall be governed by Section 8. Products commercialized outside the Syngenta Exclusive Field by Diversa or its Affiliates under Patent Rights with respect to the Biomolecule shall be “Diversa Products” for purposes of this Agreement, and […***…]. The other provisions of Sections 6 and 7 shall apply to the calculation and payment of royalties by one Party to the other as provided above. Except as provided above, all intellectual property rights shall be governed by Section 8.

2.3    Directed Research.

Subject to other conditions of this Agreement, at Syngenta’s request, Diversa shall diligently conduct Directed Research to improve the Platform Technology, to provide services using the Platform Technology, and other research services as Syngenta may otherwise reasonably request and Diversa may agree to undertake. Diversa shall not be obligated to conduct any research proposed by Syngenta as Directed Research if such research requires use, in any material respect, of any proprietary technology or intellectual property of Diversa relating to molecular evolution and/or microbe or microbial gene discovery technologies, except as agreed to by Diversa in its sole discretion.

2.4    Research Plan.

(a)    At least annually by November 1, subject to other provisions in this Section 2 and in Section 3, the Research Committee will prepare and agree upon a Research Plan for the following Year of the Research Term and shall review the Project Plans related to the Research Plan for such year. At a minimum, each Research Plan will include: (i) a general overview and timetable for the Project Research and the Directed Research and appropriate resources and budgets for such research during the next Year, and (ii) a preliminary and non-binding plan for research activities to be conducted in the subsequent Year which shall include, without limitation, staffing and resource allocations. Each Research Plan shall set specific objectives for the applicable Year, which objectives will be updated or amended, as appropriate, by the Research Committee as research progresses, shall set forth specific research activities within applicable targets and technologies as appropriate, and shall include any changes to the applicable Project Plans as may be agreed in accordance with this Agreement. If the Research Plan for a given Year has not yet been approved by the beginning of such Year pursuant to this Section 2.4, Diversa may begin or continue to perform research activities under this Agreement on active

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Projects or Reserve Projects, if necessary, and other research then in process during such Year pending the approval of the final Research Plan for such Year. In addition, at least annually each January 1, subject to confidentiality obligations to Third Parties and the last sentence of this section, Syngenta shall provide Diversa with written information regarding Syngenta’s current plans for commercialization of Syngenta Products that have not yet been commercialized, as well as currently available sales projections or forecasts for Syngenta Products on which royalties are payable to Diversa hereunder, that have been commercialized, in each case as estimated by Syngenta in good faith; provided, however, that Syngenta shall incur no liability hereunder for (i) Syngenta’s failure to, or delay in, for any reason whatsoever, commercializing, or continuing to commercialize, any such applicable Syngenta Products at all, or in accordance with such plans, or (ii) actual sales, if any, of such applicable Syngenta Products failing to meet or exceed such projections or forecasts. Syngenta shall have no obligation to generate or to create new information or documents for Diversa to comply with the preceding sentence and may utilize its pre-existing information and documents.

(b)    A preliminary Research Plan for the first Year of the Research Term will be agreed to by the Parties as of the Effective Date, which preliminary Research Plan will be provided supplementally by the Parties on or before the Effective Date. The Parties will use their commercially reasonable efforts to have the Research Committee agree on an updated Research Plan for the first Year of the Research Term not later than […***…] after the Effective Date; provided that Diversa shall be entitled to perform research activities under this Agreement pursuant to the preliminary Research Plan until the updated Research Plan is agreed.

(c)    The Research Committee shall review the Research Plan and applicable Project Plans on an ongoing basis, but in no event less than quarterly, and may, in its discretion, make changes that are consistent with this Agreement to the Research Plan and applicable Project Plans then in effect except as otherwise provided in this Agreement. At least once per Year during the Research Term, the Research Committee will meet with an executive committee including the business head of the Non-Pharma Group for Diversa and a member of the Plant Science Management Team of Syngenta’s Affiliate to review with such executive committee the status of and progress under the Research Program and expected activities under the Research Program during the following Year.

(d)    It is expected that about […***…] of the total annual funding of the Research Program provided by Syngenta under this Agreement will be on Project Research and that about […***…] of the total annual funding of the Research Program provided by

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Syngenta under this Agreement will be on Directed Research, unless otherwise agreed in writing by the Parties. Of the Directed Research, […***…] is expected to be allocated to Platform Technology improvements and development and […***…] is expected to be used on other Directed Research. The Research Committee may recommend a variance to the split of resources between Directed Research and Project Research; provided that the agreement of both Parties will be required to any such variance if the Project Research percentage is more than […***…] or less than […***…] and the Directed Research percentage is more than […***…] or less than […***…].

2.5    Staffing Level.  For each Year of the Research Term during which FTE Funding is $20.665 million, Diversa shall devote […***…] FTEs per Year (the “Staffing Level”) unless otherwise mutually agreed by the Parties. During any Year in which FTE Funding is less than $20.665 million as permitted under this Agreement, Diversa shall be entitled to decrease the Staffing Level ratably with the amount of the decrease in FTE Funding, in proportion to the percentage of FTEs allocated to Project Research and Directed Research. If FTE Funding is greater than $20.665 million during any Year during the Research Term, Diversa shall increase the Staffing Level ratably with the amount of such increase to carry out the Research Program unless otherwise mutually agreed by the Parties, in proportion to the percentage of FTEs allocated to Project Research and Directed Research. In no event shall Syngenta be obligated to pay more than $20.665 million per annum in FTE Funding in any Year without its prior written agreement, and in no event shall Diversa be obligated to increase the Staffing Level to more than […***…] FTEs in any Year without its prior written agreement except as otherwise provided in this Agreement. Diversa shall cooperate with Syngenta in adapting the skill set of Diversa’s FTEs to facilitate reasonable flexibility in the funding of research and development activities (but not “pass-through” development activities which would not involve Diversa employees (i.e. buying in or subcontracting for development capabilities)) of Directed Research and Project Research.

2.6    Research Funding.

(a)    In addition to the payments contemplated under Sections 5 and 6 hereof, Syngenta agrees to pay Diversa for FTEs for Directed Research and Project Research (the “FTE Funding”) $20.665 million per annum for the initial five year term of the Research Term under this Agreement. The cost of the Directed Research and the Project Research to be funded by Syngenta shall be calculated based on the number of FTEs allocated to such work at the following rates for the 2003 calendar year:

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$[…***…] per annum for FTEs engaged in Project Research (the “Project Research Rate”); and

$[…***…] per annum for FTEs engaged in Directed Research (the “Directed Research Rate”).

The Project Research Rate and the Directed Research Rate for each FTE shall be CPI adjusted on the annual anniversary of the Effective Date, applying the published CPI figure as of October 31 of the prior year, using 2002 as the base year; provided, however, that in no event shall the Project Research Rate or the Directed Research Rate be reduced. The first CPI adjustment will be for the 2004 Year and will be based on the CPI as of October 31, 2003. If CPI adjustments result in increases in the FTE Funding rate such that the total FTE Funding under this Section 2.6(a) would exceed $20.665 million per annum during any Year, Syngenta may, with reasonable notice to the Research Committee, modify that Year’s Research Plan so as to (i) increase its FTE Funding to maintain the same number of FTEs, or (ii) reduce the number of FTEs, as necessary, to limit its annual FTE Funding to $20.665 million per year.

(b)    Subject to Section 12.1, for any period of this Agreement beyond the initial five years of the Research Term, Syngenta may fund Directed Research and Project Research at any level of funding in its discretion, as set forth in the provisions of this Section 2.6(b); provided, however, Syngenta must give Diversa at least […***…] notice of extension of the Research Term under this Agreement prior to the expiration of any current Research Term, including the level of FTE Funding during such extension. For purposes of the following provisions, “T” means the last year of the Research Term in which FTE Funding was at least $20.665 million. If Syngenta elects to reduce the FTE Funding in any year after the initial five year Research Term from the prior year’s FTE Funding, it may reduce FTE Funding up to a maximum of 50% of T in the first year of reduction; up to a maximum reduction of 75% of T in the second year; and up to a […***…] reduction in the […***…]. Notwithstanding Section 2.4(d), if the FTE Funding provided by Syngenta under Section 2.6(a) is $[…***…] during any year after the initial five years of the Research Term, all FTE Funding shall be allocated to Project Research unless mutually agreed in writing by the Parties.

(c)    Annual FTE Funding payments by Syngenta to Diversa shall be made […***…] in advance throughout each year of the Research Term (provided that the last […***…] during the Research Term may be adjusted as necessary for the remaining FTE Funding due). In the event the number of FTEs actually

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used on the Research Program for any […***…] is less than the number of FTEs to be used in the Research Program based on FTE Funding provided by Syngenta for […***…], the difference shall be carried forward to be used on activities conducted by Diversa in connection with the Research Program during the remaining […***…]. In no event shall this Section 2.6(c) limit or affect Syngenta’s FTE Funding obligations under Section 2.6(a) and (b). The parties agree that, in the event that there are fewer than […***…] Transferred Employees (as defined in the Transaction Agreement) in the […***…] of the Research Program, the FTE Funding will be paid in accordance with this Section 2.6 and Diversa may make up the number of FTEs actually used on the Research Program in the […***…] (if less than the number to be used based on FTE Funding provided by Syngenta for […***…]) in the remaining […***…] of the Research Program.

(d)    Except as expressly set forth in this Agreement, Diversa shall be responsible for the expense of the conduct of its obligations under the Research Program, including without limitation the expense of personnel, equipment, materials and supplies required to carry out the Research Program, and expenses for the research (except as provided herein), development and commercialization of Diversa Products and any other products (except Syngenta Products) sold or licensed, or developed for sale or license, by Diversa or its Affiliates or Sublicensees which incorporate or are made through use of Program Technology. Syngenta shall be responsible for all other expenses required to carry out the Research Program, including, but not limited to, those related to development and commercialization of Syngenta Products except as otherwise provided in this Agreement. For the avoidance of doubt, the FTE Funding covers the expenses of Diversa activities under the Research Program including the following:

(i)      all laboratory and office consumables;

(ii)     equipment including without limitation clean cabinets, constant environment cabinets, and incubators;

(iii)    costs of contract services as needed such as culture identification/storage, and protein sequencing […***…]; (iv) development of new methods as needed to support new laboratory assays, such as […***…];

(v)      media preparation, maintaining lab supplies, reasonable gene sequencing services back up support and assistance; and

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(vi)    expenses of Diversa’s staff such as scientific meeting attendance and travel.

(e)    Except as expressly set forth in this Agreement or in the License Agreement, Diversa shall be responsible for all payments due to Third Parties for the acquisition and maintenance of licenses to intellectual property necessary for the practice of the Platform Technology in the Research Program, for the acquisition and maintenance of licenses to intellectual property for commercially available software, arrays, chips and other materials necessary for its conduct of the Research Program, and any other technology and Diversa Materials that it provides in the Research Program, and the costs of negotiating and preparing such licenses; provided, however, that Diversa shall not be responsible for any of the foregoing payments or costs if Diversa does not use any such licenses or technologies for the practice of the Platform Technology outside of the Syngenta Exclusive Field or for the practice of Diversa’s proprietary technology; provided further that all such expenses which Diversa believes are for Syngenta’s account and not Diversa’s expense must be approved by Syngenta in advance. For the avoidance of doubt, if Diversa maintains a license with a Third Party in its overall operations, no part of the cost of the license fee shall be allocated to or payable by Syngenta; provided that if a unique or custom array or chip is needed under such license and available only for a separate fee, then the separate fee may be charged to Syngenta if Syngenta has approved such expense in advance. Diversa shall also be responsible for payments to Third Parties with respect to licenses for Diversa Products and any other products sold or licensed, or developed for sale or license, by Diversa or its Affiliates or Sublicensees which incorporate or are made through use of Program Technology as set forth in Section 6.6(b). Except as expressly set forth in this Agreement, Syngenta shall be responsible for all payments due to Third Parties for the acquisition and maintenance of licenses to intellectual property necessary for any technology and Syngenta Materials that it provides in the Research Program, and the costs of negotiating and preparing such licenses. Syngenta shall also be responsible for payments to Third Parties with respect to licenses for Syngenta Products as set forth in Section 6.6(a).

(f)    Diversa shall keep records of all FTEs used in connection with the Research Program, and within […***…] during the Research Term shall provide Syngenta with a report describing the number of FTEs utilized in each of the Directed Research and Project Research, by Project, during the […***…]. Such records relating to Project Research shall be kept reasonably accessible during the Project and for […***…] following the end of the Project to which they pertain, and such records pertaining to Directed Research shall be

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kept reasonably accessible during the applicable Directed Research and for […***…] following the end of the applicable Directed Research to which they pertain. Syngenta shall have the right during such applicable period to have an independent representative or agent of Syngenta, reasonably acceptable to Diversa, which approval shall not be unreasonably withheld, audit such records during ordinary business hours, at reasonable times mutually agreed by Syngenta and Diversa, to verify the FTEs used in the Directed Research and Project Research. Such audits may be made no more than once each calendar year. Syngenta’s representative or agent will be obliged to execute a confidentiality agreement acceptable to Diversa in its reasonable judgment prior to commencing any such audit and may only disclose to Syngenta the amount of any variance or error. Syngenta shall bear the expense of such audit unless the results of the audit show that the amount actually due to Diversa for the Project Research and Directed Research for the applicable period is less than ninety-five percent (95%) of the amount charged by Diversa or paid by Syngenta for the applicable Project Research and/or Directed Research for that period, in which case Diversa shall reimburse Syngenta for the audit expenses. If the audit determines that there has been an overpayment or overfunding by Syngenta, the amount thereof shall be remitted to Syngenta within […***…]. If the audit determines that there has been an underpayment or underfunding by Syngenta, the amount thereof shall be remitted to Diversa within […***…].

2.7    Use of Materials and Syngenta Proprietary Technology.

(a)    Each Party may provide Materials to the other Party, in its discretion, for use in the Research Program. Subject to the terms of this Agreement, all rights to the Materials shall be retained by the Party that provided such Materials under this Agreement. Except as expressly permitted by this Agreement or the License Agreement (including, without limitation, the licenses granted herein and therein), a Party shall use any Materials provided to it by the other Party, and any data or information derived therefrom, solely for research activities under the Research Program which are approved in advance by the Research Committee and not for any purpose outside the Syngenta Exclusive Field without the express prior written consent of the Party that provided such Materials under this Agreement. Except as expressly permitted by this Agreement or the License Agreement (including, without limitation, the licenses granted herein and therein), neither Party shall transfer any Materials provided to it by the other Party to any Third Party without the prior written consent of the Party that provided such Materials under this Agreement. Except as expressly provided in Section 2.2(j), without the express written consent of the Party that

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provided Materials under this Agreement, the other Party shall not reverse engineer, reconstruct, synthesize or otherwise modify or copy any Materials provided by such first Party, or attempt the same.

(b)    Except for use in connection with the Research Program or as expressly permitted under this Agreement or under the License Agreement (including, without limitation, the licenses granted herein and therein), neither Party shall have any right to use or to disclose to any Third Party any proprietary technology, Patent Rights, Know-How, Research Results or Materials of the other Party.

3.    RESEARCH COMMITTEE

3.1    Representatives.

(a)    Promptly after the Effective Date, Syngenta and Diversa will each appoint three (3) representatives to a research committee of six (6) persons (the “Research Committee”).

(b)    A Syngenta representative will serve as chairperson of the Research Committee for the initial twelve (12) months of the Research Term. Thereafter, the chair will rotate between a Diversa member and a Syngenta member every twelve (12) months. A Party may change any of its appointments to the Research Committee at any time with written notice to the other Party. From time to time, the Research Committee may establish subcommittees to oversee particular activities. It is understood that each Party will designate at least one representative with business expertise to the Research Committee.

3.2    Responsibilities.  Except as otherwise provided in this Agreement, the Research Committee will agree on and may, in its discretion, modify the Research Plan and the applicable Project Plans in a manner consistent with this Agreement. The Research Committee will oversee, review, direct and supervise all operational and scientific aspects of the Research Program. In connection with each Project, the Research Committee shall discuss and must agree on (a) staffing levels, duration, technical feasibility, research activities and goals, and successful outcomes, and (b) recommendations to Syngenta as to whether the Milestones for a Project as set forth in Section 5 (or Section 2.2(c) with respect to protein therapeutic projects) have been achieved. In addition, subject to Section 2, the Research Committee shall be responsible for:

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(i)         establishing the Research Plan and the applicable individual Project Plans;

(ii)        monitoring and reporting research progress and ensuring open and frequent exchange between the Parties with respect to Research Program activities;

(iii)       approving allocations of tasks and resources required to carry out the goals of the Research Program;

(iv)       approving all plans and annual budgets for the Project Research and Directed Research within the Research Program;

(v)        defining the scope of Project Research, including specific Projects and developing and modifying the applicable Project Plans, and the Directed Research;

(vi)       redirecting the activities to be conducted in the Research Program, and reallocating the FTEs in support of such activities;

(vii)     discussing patent matters relating to the Research Program; and

(viii)    performing such other functions as appropriate to further the purposes of this Agreement, as determined by the Parties.

3.3    Decision Making.  Except as otherwise provided in this Agreement, all decisions of the Research Committee will be made by unanimous approval, with the representatives of Diversa having one (1) vote collectively and the representatives of Syngenta having one (1) vote collectively, and recorded in writing. If the Research Committee is unable to resolve, after thirty (30) days, a dispute regarding any issue presented to it or arising in it shall be decided by […***…] provided that such decision does not conflict with or result in an amendment or modification to this Agreement.

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3.4    Meetings.

(a)    The Research Committee will meet on a quarterly basis alternating between the locations of Diversa and Syngenta and its Affiliates, or at such other sites as the Research Committee may agree, and will otherwise communicate regularly by telephone, electronic mail, facsimile and/or video conference. Attendance at meetings shall be at the respective expense of the participating Parties. If personal attendance is not possible, voting by proxy is permissible. Each Party recognizes the importance of the Research Committee in the success of the Research Program and will use diligent efforts to cause all of its representatives of such committee to attend all meetings of such committee, and at least two representatives from each Party shall be required to attend each Research Committee meeting in person or by telephone to constitute a quorum. With the prior approval of the Research Committee, other full-time personnel and consultants of a Party or its Affiliates, approved by the other Party, may attend, but not vote at, Research Committee meetings.

(b)    The Research Committee shall keep accurate minutes of its meetings that record all decisions and all actions recommended or taken. The Party hosting the meeting shall be responsible for the preparation and circulation of the draft minutes. Draft minutes shall be delivered to the Research Committee within twenty (20) days after each meeting. Draft minutes shall be edited by each Party’s Research Committee representatives within twenty (20) days of receipt thereof and shall be adopted in final form at the next meeting of the Research Committee with their approval and evidenced by the signature on the minutes of all members present at the meeting described therein. Minutes of the Research Committee meetings shall be treated as Confidential Information of each Party in accordance with the provisions of Section 10 hereof.

3.5    Records and Reports.

(a)    Diversa shall maintain records that will properly reflect all work done and results achieved in the performance of the Research Program (including all data in the form required under any applicable governmental regulations and as directed by the Research Committee), including laboratory records sufficient to establish the dates of first conception and reduction to practice of any inventions within the Research Program. Diversa shall provide Syngenta and its Affiliates with access to or copies of such records relevant to […***…], as Syngenta may reasonably request, including […***…]

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[…***…]. Diversa shall maintain such records for the term of this Agreement. If Diversa wishes to destroy such records thereafter, it will give Syngenta at least […***…] prior written notice thereof and Syngenta shall have the right to have transferred to it the records which Diversa wishes to destroy at Syngenta’s expense provided that it gives Diversa notice thereof within such […***…] and Diversa shall be entitled to delete or destroy any Confidential Information of Diversa included therein.

(b)    During the Research Term, Diversa shall periodically, and not less often than quarterly, provide to the Research Committee written reports summarizing the progress of the research performed pursuant to the Research Plan during the preceding quarter. Diversa shall also periodically, and not less than quarterly, provide a written report (which may be provided as part of the report described in the preceding sentence) summarizing Platform Technology Improvements and Program Technology necessary or useful for the discovery, development, testing use, manufacture or sale of Syngenta Products or otherwise useful in the Syngenta Exclusive Field, which are made or developed by Diversa under this Agreement during the Research Term, with significant discoveries or advances being communicated as soon as practical after such information is obtained or its significance is appreciated.

(c)    Syngenta may, in Syngenta’s discretion, provide Diversa with access to or copies of books and records, laboratory notebooks and other written or electronic materials and/or software owned or Controlled by Syngenta or its Affiliates for use by Diversa in the conduct of the Research Program and may provide Diversa with such access as may be required by Diversa in connection with the licenses granted to Diversa under this Agreement or in the License Agreement, which Syngenta and its Affiliates shall retain all ownership rights with respect thereto. Diversa shall maintain the foregoing in confidence as Syngenta Confidential Information and at Syngenta’s request shall give Syngenta access thereto at anytime during Diversa’s normal business hours and shall, at Syngenta’s request, promptly return such books and records, notebooks, software, and other information and materials, and all copies thereof.

4.    EXCLUSIVITY AND OTHER COVENANTS

4.1    Diversa Exclusivity Obligations.

(a)    Diversa agrees, subject to the provisions of this Section 4 and the other terms of this Agreement, that it shall conduct research and development activities

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in the Syngenta Exclusive Field exclusively for Syngenta; for purposes of clarification, it shall not engage, or grant a license to a Third Party under intellectual property rights Controlled by Diversa to permit the Third Party to engage, in any research, development or commercialization activities in the Syngenta Exclusive Field for itself or for or with any Third Party. Notwithstanding the foregoing, Diversa is permitted to perform research and development activities outside the Syngenta Exclusive Field, even if such activities may result in the incidental discovery or development of research results, information, data or products which may have utility within the Syngenta Exclusive Field, provided that Diversa does not develop or commercialize itself, or through a Third Party, any results of such research and development activities within the Syngenta Exclusive Field during the period of exclusivity hereunder. Notwithstanding the foregoing, Syngenta’s option and Diversa’s obligation to conduct research and development activities primarily related to the […***…] under the Research Program shall be non-exclusive; provided that this shall not constitute a modification or waiver of Diversa’s obligations under Section 4.2 hereof not to compete with respect to Projects which are undertaken or Products that are primarily related to the […***…].

(b)    Diversa’s obligations under this Section 4.1 shall terminate […***…] after the end of the […***…] in which […***…] as long as the […***…]. If the […***…] after the end of the […***…], then Diversa’s obligations under Section 4.1 shall terminate […***…].

(c)    For avoidance of doubt, Diversa’s obligations hereunder do not apply to research, development and/or commercialization activities by Diversa on its own behalf or with any Third Party with respect to any Biomolecule or product outside the Syngenta Exclusive Field; provided that research, development and/or commercialization of a Diversa Proprietary Gene produced in Plants for use only outside the Syngenta Exclusive Field shall be subject to the following provisions. Syngenta will be the preferred supplier to Diversa and its Affiliates to provide manufacturing services to produce a product utilizing any Diversa Proprietary Gene through production in Plants if Diversa (or its Affiliate) elects, in its sole discretion, to commercialize such product if the following conditions are met: (i) Syngenta’s proposal for such manufacturing services is commercially reasonable compared to a similar proposal for services provided by an independent Third Party and (ii) within […***…] of receipt of Diversa’s notice of its intent to commercialize such product, Syngenta

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has advised Diversa in writing of its willingness to provide such Plant production services and the charges therefor; provided that the Parties agree to extend the time by which Syngenta must provide a proposal to Diversa for a reasonable time, but not more than […***…] unless otherwise mutually agreed, if Syngenta in good faith requires additional time to determine the costs for such manufacturing services. Diversa shall treat the nature or content of Syngenta’s proposal for such services as Syngenta’s Confidential Information in accordance with Section 10 hereof. In order for Syngenta to provide its proposal for the manufacturing services for a given product, Diversa will provide to Syngenta in writing at the time of its notice of intent to commercialize a product, […***…]. Diversa shall notify Syngenta in writing within […***…] after receipt of such proposal from Syngenta, including the charges for its services, whether or not Syngenta has met the two conditions set forth above. If the conditions are met and Diversa proceeds toward commercialization of the product, then the Parties will enter into a manufacturing services agreement to be negotiated in good faith between the parties; if the Parties are unable to reach agreement within […***…], Diversa shall be free to initiate contract negotiations, and enter into a contract, with a Third Party for such manufacturing services […***…]. The obligation to offer Syngenta the opportunity to provide manufacturing services under this Section 4.1(c) shall terminate upon termination of the Preferred Supplier Period. Syngenta shall have no obligation to license any technology or Patent Rights or other rights to any Third Party or to Diversa to enable Diversa or such Third Party to provide manufacturing services to Diversa.

(d)    If Diversa proposes a project in good faith which is included in the meaning of […***…], and Syngenta does not within […***…] of Diversa proposing such project, agree in good faith to fund such proposed project in the future at any time under this Agreement, Diversa shall thereafter be free to pursue such project, itself or in collaboration with any Third Party. If Syngenta, having so agreed, later decides not to pursue or continue such Project, then Diversa shall have the right to pursue such project itself or with Third Parties, free of its obligations under Section 4.1 hereunder with respect to such project but without use of any Research Materials or Program Technology unless agreed to in writing by the Parties.

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4.2    Mutual Exclusivity Obligations.

(a)    Subject to Sections 4.2(b) and 4.2(c), Diversa and Syngenta each agrees, and each agree that they will procure the agreement of their respective Affiliates, that neither Diversa nor Syngenta, nor their respective Affiliates will itself or for or with any Third Party, directly or indirectly, engage in research, development, or commercialization of a product or project which is directly competitive with a Product or Project under this Agreement, from either a functional or customer or potential customer basis, regardless of the manufacturing route used. These obligations shall commence when Diversa’s obligations under Section 4.1(a) terminate under Section 4.1(b) and shall apply to all Projects active at the time of commencement of these obligations under this Section 4.2(a) and to any new active Projects thereafter under the Research Program, and to the Syngenta Products on or after the commencement of the obligations under Section 4.2(a). The obligations shall terminate as provided in Section 4.2(b).

(b)    The obligations set forth in Section 4.2(a) shall terminate on a Product by Product and Project by Project basis upon the earlier of (i) first commercial sale of such Product; (ii) notice by Syngenta to Diversa that Syngenta, in its sole discretion, has ceased further research, development and/or commercialization activities with respect to a particular Project or Syngenta Product prior to first sales; and (iii) notice by Syngenta that it has waived the obligations set forth in Section 4.2(a) with respect to a particular Project or Product. Syngenta agrees to provide Diversa written notice of its or its Affiliates cessation of research, development and/or commercialization activities with respect to a particular Project or Syngenta Product under this Agreement prior to first sales promptly after a formal decision to cease such activity has been made.

(c)    Notwithstanding the provisions of Section 4.2(a) and Section 4.2(b), and subject to Section 4.4, these obligations shall not apply to (i) Syngenta’s and its Affiliates’ research, development and commercialization, directly or through Third Parties, of […***…]; and/or (ii) the mere equity ownership, on a passive investment basis, by a Party of up to […***…] in a company engaged in these activities shall not be deemed to be a violation of Section 4.2(a) and (b). Further, if a Party or any of its Affiliates acquires a business or company which at the time of acquisition is engaged in the research, development and/or commercialization of a project or product which is directly competitive with a Project or Product under this Agreement, whether by acquisition of assets or by equity ownership (other than as permitted under Section 4.2(c)(ii)), then such acquisition shall not

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be deemed to be a violation of the obligations set forth in Section 4.2(a) and (b) if the acquiring Party or its applicable Affiliate discontinues or divests itself of the competing project or product within […***…] after the consummation of such acquisition or Syngenta waives such obligations with respect to the applicable Project or Product pursuant to Section 4.2(b)(iii).

4.3    Diversa Third Party Projects.

(a)    Diversa agrees that if it or its Affiliate should enter into a project or agreement with a Third Party that could benefit from Syngenta’s participation, such as if production in Plants rather than through Fermentation could significantly lower product costs, Diversa shall recommend Syngenta to the Third Party as a preferred collaborator or supplier. This obligation shall terminate upon the termination of […***…].

(b)    Nothing in Section 4.3 shall be construed to limit or modify Diversa’s obligations to Syngenta under Section 4.1 and 4.2. For the avoidance of doubt, for products invented by Diversa for Third Parties, which products fall outside the Syngenta Exclusive Field, Diversa shall be permitted to engage in such activity but not to manufacture in Plants; provided however, that notwithstanding anything to the contrary in this Agreement, nothing shall prevent the Third Party from manufacturing in Plants.

4.4    Syngenta Agreement.

(a)    With respect to Projects or Products, on a by Project or by Product basis, for the shorter of (i) the duration of […***…] or its […***…], or in the event that […***…], and (ii) the term of […***…], Syngenta agrees, and agrees to procure the agreement of its Affiliates, that neither Syngenta nor its Affiliates shall enter into any new agreement with a Third Party for microbe and microbial gene discovery and/or molecular evolution using the same or substantially similar technologies commercially available as of the Effective Date and available through Diversa under this Agreement to develop a product the same or substantially similar to any such Syngenta Product or Project. Additionally, during such period, Syngenta agrees that Diversa will be a preferred provider of microbe and microbial gene discovery and molecular evolution technologies in the Syngenta Exclusive

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Field subject to Syngenta’s existing contractual obligations with Third Parties relating to microbe and microbial gene discovery and molecular evolution. Syngenta will not require Diversa to undertake a Project which would directly compete with a project under an agreement between Syngenta and a Third Party for microbe and microbial gene discovery and/or molecular evolution; if Diversa and Syngenta agree to proceed with such competing Project, then the mutual non-compete obligations set forth in Section 4.2(a) shall not apply with respect to such Project. Syngenta’s obligations under this Agreement are subject to the Syngenta Commitments, and Diversa acknowledges that Syngenta has disclosed in writing, pursuant to Section 9.2(a), Syngenta Commitments which include existing contractual relationships with Third Parties relating to microbe and microbial gene discovery and/or molecular evolution.

(b)    Subject to the terms of this Agreement, Syngenta or any of its Affiliates may use, directly or indirectly, any Research Results or Program Materials, including any Biomolecules discovered or identified in the course of the Research Program, in any research, development or commercialization activities which it conducts in-house for any purpose or under contract with a Third Party to progress Projects and/or Syngenta Products, but not with any Third Party for any other purpose in conflict with Syngenta’s obligations under Section 4.2. Diversa agrees to provide Syngenta with access to all Biomolecules discovered or identified in the course of the Research Program and a license to use such Biomolecules in the Syngenta Exclusive Field in accordance with and subject to Section 8.4 of this Agreement. During the term of Diversa’s obligations under Section 4.1(a) prior to their termination under Section 4.1(b), Syngenta agrees and agrees to procure the agreement of its Affiliates that (i) neither Syngenta nor its Affiliates will use Biomolecules discovered or identified in the course of the Research Program with a Third Party for microbe and microbial gene discovery and/or molecular evolution and (ii) neither it or its Affiliates will start any new projects, in-house or with a Third Party, which are directly competitive with any active Project under the Research Program, once research has commenced with respect to such active Project under the Research Program until such Project has been completed or such Project has been terminated and removed from the Project List. Notwithstanding the foregoing, nothing in this Agreement shall prohibit Syngenta or its Affiliates from using in any manner whatsoever Biomolecules which have been placed into the public domain other than by wrongful disclosure by Syngenta or its Affiliates.

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5.    RESEARCH MILESTONE PAYMENTS

5.1    Project Milestones.  Diversa shall be eligible to receive Project milestone payments from Syngenta for the achievement of relevant events for a particular Project in accordance with the table set forth below and which shall be adapted as appropriate and included in the Project Plan for each Project prior to the commencement thereof (“Milestones”). Once the specific Milestones have been established for a Project in a Project Plan in accordance with the categories set forth in this Section 5.1, such Milestones and related payments may not be amended without Syngenta’s written agreement. No more than a total of $[…***…] in Milestone payments under this Agreement shall be due for each Project. Notwithstanding other provisions in this Section 5.1 to the contrary, the Parties agree that the Milestones and payments related thereto for certain new protein therapeutic projects described in Section 2.2(c) hereof shall be governed by the provisions of Section 2.2(c).

Milestones and Milestone Payments

1.    […***…]
[…***…]
	[…***…]
2.    […***…]
[…***…]
	[…***…]
3.    […***…]
[…***…]	[…***…]

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4.    […***…]

[…***…]                                                                                                                                                   […***…]

5.    […***…]                                                                                                                                                   […***…]

5.2    Milestone Payments.  Diversa shall provide the Research Committee with satisfactory evidence and supporting documentation that it has achieved the milestones. Achievement against the agreed Milestones for a Project shall be determined by Syngenta in good faith. If a Milestone has been achieved to Syngenta’s good faith satisfaction, Syngenta shall pay Diversa the applicable Milestone payment within […***…]. The total amount of all Milestone payments per Project shall not exceed $[…***…] (except as provided in Section 2.2(c) with respect to certain new protein therapeutic projects as to which the total of all milestone payments per such new protein therapeutic project shall be as set forth in Section 2.2(c)). For the avoidance of doubt, except as provided in Section 2.2(c), at […***…] a total of $[…***…] per Project shall have been paid or be due to Diversa. Individual Milestone payments will not be partially paid.

6.    ROYALTIES

6.1    Royalty Rate.  If a Syngenta Product is commercialized by Syngenta, Diversa shall be entitled to royalties on Syngenta’s annual Net Revenue for Syngenta Products, on a Product by Product basis, subject to Section 6.3 and 6.5 hereof, based on the following royalty rate schedule, depending on whether the Syngenta Product is […***…]:

Annual Net Revenue Per Syngenta Product	Royalty % […***…]	Royalty % […***…]
[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]

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[…***…]                                          […***…]                                          […***…]

For example, if Net Revenue for one Syngenta Product […***…] was $[…***…] in a given calendar year and the Net Revenue for another Syngenta Product […***…] was $[…***…] in that calendar year, Syngenta would pay royalties of $[…***…] to Diversa for that calendar year (the sum of (a) $[…***…]).

If the […***…] is changed during the year between […***…] and […***…], the […***…] royalty rate will be used to calculate the royalty on the Net Revenue received from Syngenta Products […***…] during the year and the […***…] royalty rate shall be used to calculate the royalty due on the Net Revenue received from Syngenta Products […***…] during such year.

6.2    Cumulative Royalty.  If cumulative annual Net Revenue of all Syngenta Products, in aggregate, exceed $[…***…] in Net Revenue in […***…], subject to Section 6.3 hereof, Diversa shall earn an additional royalty in the amount of […***…] of cumulative annual Net Revenue for all Syngenta Products in total for that […***…] in which more than $[…***…] Net Revenue occurs. This is not a compound increase, […***…].

6.3    Net Revenue Adjustment.  The amount of Net Revenue earned by Syngenta on a Syngenta Product shall be adjusted for purposes of calculation of royalties under Section 6.1 and 6.2 where sales or other revenue is not directly and solely attributable to such Syngenta Product (e.g. where traits are stacked or where seed and chemicals are sold together). In this event, the Parties shall negotiate in good faith to allocate a portion of such sales or other revenue that is attributable to the value of the Syngenta Product. Revenue used for calculation of the Net Revenue for the royalty and cumulative royalty calculations under Section 6.1 and 6.2 shall be as determined by agreement by the Parties pursuant to this Section 6.3 or, failing such agreement, pursuant to the arbitration provisions set forth in Section 13.

6.4    Non-Cash Revenue.  If in connection with the sale or transfer of a Syngenta Product, Syngenta or its Affiliates grants a Sublicensee a sublicense under any Program Technology or to any Syngenta Product, in exchange for any consideration in a form other than cash or a cash equivalent (e.g., a license under other intellectual property owned or Controlled by a Third Party), the fair market value of the non-cash consideration received by Syngenta and its Affiliates for such rights or product, as the case may be, shall

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be agreed by the Parties, or if the Parties are unable to agree on such fair market value, either Party may submit such matter to dispute resolution pursuant to Section 13 below, in order to determine the fair market value of such consideration which shall be used in calculating Revenue.

6.5    Duration of Royalties.  The royalties due hereunder will be payable on a country by country, Product by Product basis beginning on the first commercial sale of the applicable Product in the applicable country and ending on the later of (a) […***…] after the date of first commercial sale of such Product in such country if there are no issued patents included in the Patent Rights pertaining to such Product in such country or (b) the expiration of the last to expire of the issued patents included in the Patent Rights pertaining to such Product in such country. For the avoidance of doubt, no royalties shall be due hereunder in the event that the royalty obligation arises solely by virtue of issued patents included in the Patent Rights that claim the manufacture, use or sale of the Biomolecule incorporated into the Product that was discovered, identified, or developed, or the utility of which is discovered or identified in the course of the Research Program (and not issued patents included in the Patent Rights that claim the manufacture, use or sale of the Product) and the issued patents included in the Patent Rights applicable to such Biomolecule have expired or have been abandoned in all countries.

6.6    Third Party Royalties.

(a)    Except as otherwise expressly set forth in this Agreement or the License Agreement, Syngenta shall be responsible for the payment of any royalties, license fees and milestone and other payments due to any other Third Party(ies) under licenses or similar agreements necessary for the development, manufacture, propagation, use, import or sale of Syngenta Products developed, made and/or commercialized by Syngenta or its Affiliates or Sublicensees.

(b)    Except as otherwise expressly set forth in this Agreement or the License Agreement, Diversa shall be responsible for the payment of any royalties, license fees and milestone and other payments due to any other Third Party(ies) under licenses or similar agreements necessary for the development, manufacture, propagation, use, import or sale of Diversa Products, and any other products which incorporate or are made through use of Program Technology (other than Syngenta Products), developed, made and/or commercialized by Diversa or its Affiliates or Sublicensees.

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6.7    Withholding Taxes.  Any tax that one Party is required to withhold and pay on behalf of the other Party with respect to the payments payable by such Party to the other Party under this Agreement shall be deducted from and offset against said payments prior to remittance to that other Party; provided, however, that in regard to any tax so deducted, the withholding Party shall give or cause to be given to the other Party such assistance as may reasonably be necessary to enable that other Party to claim exemption therefrom or credit therefor, and in each case shall furnish the other Party with proper evidence of the taxes paid on its behalf.

7.    BOOKS AND RECORDS

7.1    Reports and Payments.

(a)    After the first commercial sale of a Product as to which royalties are payable by one Party to the other Party hereunder, the Party owing royalty payments shall make quarterly written reports to the other Party for each calendar quarter, within […***…] after the end of the applicable calendar quarter, stating in each such report, for Net Revenue of such Party and its Affiliates, on a country-by-country and Product-by-Product basis:

(i) the quantity and description of each Product sold; and

(ii) the Net Revenue for each Product, and the calculation of royalties due thereon, accompanied by sufficient information to enable the Party due royalties to verify the accuracy of the royalty calculations made by the other Party, and a detailed explanation of the methodology used to determine the royalty payment, including, without limitation, the exchange rates used pursuant to Section 7.3.

Concurrently with the making of any such reports, the Party owing royalties to the other Party shall pay to such other Party, within […***…] after the end of each calendar quarter, all royalties due pursuant to Section 6 in the case of Syngenta on Syngenta Products. If no royalties are due, such Party shall so notify the other Party. The Parties acknowledge that the royalty reports and payments from Syngenta to Diversa for each calendar quarter during a calendar year will be based on […***…] and that […***…]

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[…***…].

7.2    Payment Method; Late Payments.  All amounts due either Party hereunder shall be paid in U.S. dollars by wire transfer in immediately available funds to a bank account designated by the receiving Party. Any payments or portions thereof due hereunder which are not paid on the date such payments are due under this Agreement shall bear interest at a rate equal to the lesser of […***…], or the […***…], calculated on the number of days such payment is delinquent, […***…]. This Section 7.2 shall in no way limit any other remedies available to either Party.

7.3    Currency Conversion.  Royalty payments subject to this Agreement shall first be determined in the currency earned and then converted to its equivalent in United States currency. The average of the buying rates on exchange for converting the currencies involved into the currency of the United States quoted by the Financial Times (or its successor in interest) for the quarterly period in which the royalty payments were earned shall be used to determine any such conversion.

7.4    Restrictions on Payment.  The obligation to pay royalties under this Agreement in a particular country shall be waived and excused to the extent that statutes, laws, codes or government regulations in such country prevent such royalty payments; provided, however, in such event, if legally permissible, the paying Party shall pay the royalties owed to the receiving Party by depositing such amounts in a bank account in such country that has been designated by the receiving Party and promptly report such payment to the receiving Party.

7.5    Records; Inspection.  Each Party and its Affiliates shall keep (and cause its Sublicensees to keep) complete, true and accurate books of account and records for the purpose of determining the royalty payments payable under this Agreement. Such books and records shall be kept reasonably accessible for three (3) years following the end of the calendar year to which they pertain. Such records will be open for inspection during such three (3) year period by a representative or agent of the receiving Party reasonably acceptable to the paying Party, which approval shall not be unreasonably withheld, for the purpose of verifying the statements provided pursuant to Section 7.1. Such inspections may

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be made no more than once each calendar year, at reasonable times mutually agreed by Syngenta and Diversa. The inspecting Party’s representative or agent will be obliged to execute a confidentiality agreement acceptable to the other Party in its reasonable judgment prior to commencing any such inspection and may only disclose to the inspecting Party the amount of any variance or error. The inspecting Party shall bear the costs and expenses of inspections conducted under this Section 7.5, unless a variation or error producing an underpayment in amounts payable exceeding five percent (5%) of the amount payable for any year is established in the course of any such inspection, whereupon all costs relating to the inspection and any unpaid amounts that are discovered will be paid by the paying Party or any overpayments will be returned to the paying Party, together with interest on such unpaid amounts or overpayments at the rate specified in Section 7.2 above.

8.    INTELLECTUAL PROPERTY

8.1    Ownership of Existing Intellectual Property and Improvements.  Syngenta or its Affiliates shall retain all ownership rights to all Patent Rights, Know How, and Materials owned by Syngenta or its Affiliates as of the Effective Date and to any improvements thereof, excluding Platform Technology Improvements not specifically requested to be made and funded by Syngenta as part of Research Program hereunder, and Diversa hereby assigns to Syngenta all right, title and interest in and to any such improvements. Diversa or its Affiliates shall retain all ownership rights to all Patent Rights, Know How, and Materials, and all other intellectual property owned by Diversa or its Affiliates as of the Effective Date and to any improvements thereof, including Diversa’s proprietary nucleic acid libraries, and shall own all improvements to Diversa’s discovery and evolution technologies, and all its screening assays, and Syngenta hereby assigns to Diversa all right, title and interest in and to any such improvements made, conceived or reduced to practice by employees or consultants of Syngenta or its Affiliates in the course of the Research Program and all intellectual property rights therein. Notwithstanding anything to the contrary contained herein, each Party shall own all manufacturing host organisms, and all intellectual property related thereto, that it owns as of the Effective Date, or develops subsequently, whether under this Agreement or otherwise, and any improvements thereto.

8.2    Ownership of New Intellectual Property and Research Results.

(a)    Inventorship of inventions, whether or not patentable, conceived of by employees or consultants of either Party, or jointly by employees and consultants of both Parties, in the course of work performed under the Research Program (collectively, the “Inventions”) shall be determined in accordance with United States patent

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laws, and ownership of Inventions shall be determined in accordance with inventorship except as otherwise provided in Section 8.1 and this Section 8.2. Except as specifically set forth herein, the inventing Party shall own all Inventions hereunder.

(b)    Except as expressly provided in this Agreement, Syngenta shall own all Program Technology, and Diversa shall only use Research Results and Program Materials for Project Research and Directed Research hereunder.

(c)    Diversa shall own all Patent Rights and Know-How related to compositions of matter, uses of or methods primarily relating to, or otherwise primarily involving, any Biomolecule or any derivative or analog thereof discovered pursuant to the conduct of the Projects under the Research Program, any Diversa Product or any other product sold or licensed, or developed for sale or license, by Diversa or its Affiliates or Sublicensees which incorporates or is made through use of Program Technology, including, but not limited to, methods and techniques used for discovery and/or optimization of Biomolecules and derivatives or analogs thereof, and methods of using Biomolecules to make products, and shall be entitled to use the foregoing for any purpose, subject to the provisions of Section 4 and any license granted under Section 8.4(a); provided, however that Plant Genes are excluded from this Section 8.2(c) and are included in Section 8.2(e).

(d)    Diversa shall own all Platform Technology Improvements, and shall be entitled to use the foregoing for any purpose, subject to the provisions of Section 4 and subject to the provisions of Sections 8.1 and 8.4(b) with respect to Platform Technology Improvements included in the Research Results.

(e)    For the avoidance of doubt, Syngenta shall own all Patent Rights and Know-How that claim, disclose or cover compositions of matter that are Plant Genes discovered pursuant to the conduct of the Projects under the Research Program or Syngenta Products, and uses of, or methods of making, such Plant Genes or Syngenta Products, except as set forth in Section 8.2(c).

(f)    Each Party shall (and shall cause its applicable Affiliates to) make such assignments and take such other actions as may be necessary or appropriate to effect the ownership of intellectual property rights in accordance with this Section 8.2.

8.3    Ownership Dispute.  If there is a dispute regarding the ownership of any Research Results, Patent Rights and Know How under Section 8.1 or 8.2, the Parties agree to resolve such dispute by submitting such dispute to an independent patent counsel

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mutually acceptable to the Parties for resolution, with each Party paying half of the fees of such independent patent counsel.

8.4    License of Platform Technology and Biomolecules.

(a)    Diversa hereby grants to Syngenta and its Affiliates a perpetual (subject only to payments due hereunder), exclusive, royalty-bearing (pursuant to Section 6 as part of the royalties due on Syngenta Products with no other royalty being due), worldwide license, with the right to sublicense, under the Patent Rights and Know-How Controlled by Diversa and its Affiliates to make, have made and use all of the Biomolecules that demonstrated the minimum criteria levels specified in the applicable Project Plans to use, develop, make, have made, import, sell, offer for sale and have sold Syngenta Products for use in the Syngenta Exclusive Field. Diversa agrees to grant to Syngenta and its Affiliates a perpetual (subject only to payments due hereunder), royalty-bearing (pursuant to Section 6 as part of the royalties due on Syngenta products with no other royalty being due) worldwide license, with the right to sublicense, under the Patent Rights and Know-How Controlled by Diversa and its Affiliates to make, have made and use all other Biomolecules discovered or provided in the course of the Projects under the Research Program which did not demonstrate such minimum criteria levels to use, develop, make, have made, import, sell, offer for sale and have sold Syngenta Products for use in the Syngenta Exclusive Field subject to the following provisions:

(i)     Syngenta shall give Diversa written notice of its good faith intent to utilize commercially a Biomolecule discovered or provided in the course of the Projects under the Research Program which has not met the applicable criteria for development and commercialization;

(ii)    Diversa shall grant Syngenta a license, on the terms set forth in Section 8.4(a) above, to such Biomolecule in the Syngenta Exclusive Field to the greatest extent that Diversa has not granted such rights to a Third Party(ies) at the time Syngenta gives Diversa the notice set forth in subsection (i) or (iii) herein or planned to undertake within […***…] or undertaken an internally funded project to utilize such Biomolecule as established by written evidence of such project or plan at the time Syngenta gives such notice. If Diversa has not granted any Third Party(ies) a license with respect to such Biomolecule for use in the entire Syngenta Exclusive Field and has not undertaken or planned to undertake such internally funded project as described above for use in the entire Syngenta Exclusive Field, then, Diversa shall grant Syngenta an exclusive license. If Diversa has granted a Third Party(ies) a non-exclusive license to the Biomolecule for use in the entire Syngenta Exclusive Field or has undertaken or planned to undertake such internally funded project as described above for use in the entire Syngenta Exclusive Field,

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then Diversa shall grant Syngenta a non-exclusive license for the entire Syngenta Exclusive Field. If Diversa has granted a Third Party(ies) a non-exclusive and/or exclusive license or has undertaken or planned to undertake such internal project as described above with respect to the Biomolecule for use only in part of the Syngenta Exclusive Field, then Diversa will grant Syngenta an exclusive license with respect to the part of the Syngenta Exclusive Field not covered by the Third Party’s(ies’) (or the internal project’s) exclusive or non-exclusive license and a non-exclusive license for those parts of the Syngenta Exclusive Field where the Third Party(ies) has also been granted a non-exclusive license (or which is covered by the internal project). If at the time Syngenta gives notice to Diversa, Diversa has granted a Third Party(ies) an exclusive license or if Diversa has undertaken or planned to undertake such internal project as described above with respect to the entire Syngenta Exclusive Field, then Diversa shall have no obligation to grant a license to Syngenta with respect to such Biomolecule for the duration of the Third Party’s(ies’) license or the internal project.

(iii)    Syngenta shall have the right to give Diversa subsequent notice(s) of its good faith interest in a Biomolecule discovered or provided in the course of the Projects under the Research Program which has not met the applicable minimum criteria and the provisions set forth in (ii) shall apply.

(b)      Diversa agrees to grant Syngenta and its Affiliates a perpetual, royalty-free, worldwide license, with the right to sublicense, to use the Platform Technology Improvements which are owned by Diversa pursuant to Section 8.2(d) hereof, in the Syngenta Exclusive Field. Such license shall be exclusive, with the right to sublicense, during the term of Diversa’s exclusivity obligations under Section 4.1 and shall be non-exclusive thereafter.

(c)      Syngenta shall have the right to grant sublicenses under the rights granted to it under Section 8.4(a) and (b) as provided therein; provided that the Affiliate or Sublicensee to whom a sublicense is granted agrees to be bound by the terms and conditions of this Agreement. Syngenta will be responsible for all payments for Syngenta Products due to Diversa as a result of any Affiliate and Sublicensee Net Revenues. Syngenta will be responsible for the observance by all of its Affiliates and Sublicensees of all applicable provisions of this Agreement, and will use its reasonable good faith efforts to cause all of its Affiliates and Sublicensees to observe the covenants in this Agreement, including, without limitation, provisions regarding confidentiality, limitations on use of Material and/or Biomolecules, maintaining records, reporting Net Revenues, making required payments and governmental regulations

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8.5    Research License.

(a)    During the Research Term, Syngenta hereby grants to Diversa a non-exclusive, royalty-free license, under Syngenta Proprietary Technology and those Patent Rights and Know-How Controlled by Syngenta and its Affiliates which Syngenta determines should be used in the Research Program or which is licensed by Diversa to Syngenta hereunder, to use such Patent Rights and Know-How only for the conduct of the Research Program. If Syngenta elects to provide Diversa with access to its genomics data for such purpose, Diversa acknowledges and agrees that it shall use such genomics data only for its research under the Research Program for use in the Syngenta Exclusive Field for Syngenta and for no other purpose. This license is personal to Diversa and does not include a right to sublicense. This license does not include a right to commercialize.

(b)    Syngenta agrees, on behalf of itself and its Affiliates, to hold Diversa and its Affiliates harmless from and against claims by Syngenta or any of its Affiliates of infringement or misappropriation of any Syngenta Proprietary Technology or Patent Rights or Know-How Controlled by Syngenta or any of its Affiliates in connection with Diversa’s performance of its obligations under the Research Program.

8.6    Filing of Patents.

(a)    Subject to the provisions of this Section 8.6, the Party owning the Patent Rights shall have the right and the responsibility for patent filing, prosecution and maintenance (including the defense of interferences, oppositions and similar proceedings) (collectively, “Patent Activities”). Such Patent Activities shall be at the discretion and at the sole expense of the applicable owner, using patent counsel of such owner’s choice.

(b)    Each Party shall notify the other, in writing prior to any filing, of its intention to file any patent application claiming an invention made in connection with the Research Program and the ownership of which is governed by Sections 8.2(c), 8.2(d), or 8.2(e) above, including identification of each country and regional patent office in which the Party intends to file patent applications claiming priority to an earlier filed patent application, and shall at the request of the other Party promptly provide the other with copies of all patent prosecution and maintenance documentation and correspondence so that the other shall be currently and promptly informed of the continuing prosecution and maintenance of patent applications and patents claiming or disclosing inventions made in connection with the Research Program. The Parties will provide reasonable cooperation to each other with respect to each other’s Patent Activities, provided that neither Party shall have any obligation

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to incur out of pocket expenses or to engage in any legal or administrative proceedings in providing such cooperation.

(c)    If at any time the Party responsible for Patent Activities pursuant to Section 8.6(a) above (the “Responsible Party”) does not wish to file or wishes to discontinue the prosecution or maintenance of any patent application or patent filed in any country, on a country-by-country basis, which is included in the Patent Rights, it shall promptly give notice of such intention to the other Party. If such other Party then has an exclusive license under such patent application or patent pursuant to this Agreement or the License Agreement, then such other Party shall have the right, but not the obligation, to assume responsibility for the prosecution of any such Patent Rights in the applicable country, at its own expense, by giving notice to the Responsible Party of such intention within thirty (30) days. In such event, the Responsible Party shall assign all of its rights in such Patent Rights to the Party assuming responsibility for and costs of the Patent Activities for use only in the Syngenta Exclusive Field if the assignee is Syngenta and for use only outside the Syngenta Exclusive Field if the assignee is Diversa.

(d)    Each Party agrees to cooperate fully in the preparation, filing, and prosecution of any Patent Rights under this Agreement, including, without limitation, executing all papers and instruments, or requiring its employees or consultants, to execute such papers and instruments as may be reasonably required, so as to effectuate the ownership of Research Results, Patent Rights and Know-How set forth in Sections 8.1 and 8.2 and to enable the other Party to apply for and to prosecute patent applications in any country. The Parties agree to follow the patent strategy cooperation procedures set forth in Exhibit C hereto.

  8.7   Patent Enforcement.

(a)    In the event either Party becomes aware of any actual or threatened infringement or use of any Patent Rights (collectively, an “Infringement”), that Party shall promptly notify and provide full details to the other Party provided that neither Party shall be required to provide information if it would waive attorney client privilege or would be a breach of confidentiality obligations with a Third Party. The Parties will meet to discuss the appropriate course of action, and may collaborate in pursuing such course or action; provided that the owner of the Patent Rights shall have sole discretion with respect to enforcement of such Patent Rights.

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(b)    With respect to infringement of any patent included in the Patent Rights owned by a Party that is likely to have a material adverse effect on any Product being developed or commercialized by the other Party or its Affiliates or Sublicensees pursuant to a license granted under this Agreement or the License Agreement or on any such license granted under this Agreement or the License Agreement, such other Party shall have the right, at its own expense, to be represented in any such action by counsel of its own choice, and, if the Party that owns such Patent Rights fails to bring an action or proceeding prior to the earlier of (a) a reasonable time days following the notice of alleged infringement not to exceed […***…] or (b) […***…] before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, the other Party shall have the right to bring and control any such action at its own expense and by counsel of its own choice, and the Party that owns the Patent Rights shall have the right, at its own expense, to be represented in any such action by counsel of its own choice.

(c)    If either Party lacks standing and the other Party has standing to bring any such suit, action or proceeding to enforce its Patent Rights, then the Responsible Party may request the other Party to do so at the Responsible Party’s expense. The Party with standing is under no obligation to comply with such request, but rather is free to refuse such request.

(d)    No legal proceeding or claim regarding Patent Rights may be settled without the consent of the applicable owner of the Patent Rights. In no event shall either Party enter into any agreement which makes any admission regarding (i) wrongdoing on the part of the other Party, or (ii) the invalidity, unenforceability or absence of infringement of any Patent Rights owned or Controlled by the other Party, without the prior written consent of the other Party. The Parties shall cooperate with each other in connection with any such claim, suit or proceeding and shall keep each other reasonably informed of all material developments in connection with any such claim, suit or proceeding.

8.8    Third Party Infringement.  The Parties shall promptly notify one another in writing of any allegation by a Third Party that the exercise of the rights granted to either Party under this Agreement or the activities of either Party under this Agreement infringes or may infringe the intellectual property rights of such Third Party. Each Party will use commercially reasonable efforts (and will endeavor to cause its Affiliates to use commercially reasonable efforts) to cooperate with the other Party to resolve or defend against any such claims. Neither Party shall have the right to settle any patent infringement litigation under this Section 8.8 in a manner that diminishes the rights of the other Party without the prior written consent of such other Party.

*Confidential Treatment Requested

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8.9    No Unauthorized Use.  Diversa hereby covenants that it will not practice or use the Syngenta Proprietary Technology, the Program Technology, or the Patent Rights and Know-How Controlled by Syngenta, except as expressly permitted in this Agreement or in the License Agreement. Syngenta hereby covenants that it will not practice or use the Program Technology or Patent Rights and Know-How Controlled by Diversa, except as expressly permitted in this Agreement. Notwithstanding the above, nothing in this Agreement shall prohibit either Party from using outside the scope of this Agreement information which is in the public domain, unless the use of such information would infringe issued, valid patent rights owned or Controlled by the other Party hereto.

8.10    No Implied Licenses.  No rights or licenses with respect to any intellectual property owned by Diversa or Syngenta are granted or shall be deemed granted hereunder or in connection herewith, other than those rights expressly granted in this Agreement or in the License Agreement.

9.    REPRESENTATIONS AND WARRANTIES

9.1    Legal Authority.  Each Party represents and warrants to the other that it has the legal power, authority and right to enter into this Agreement and to perform its respective obligations set forth herein.

9.2    No Conflicts.

(a)    Syngenta represents and warrants that as of the Effective Date neither it nor any of its Affiliates is a Party to any agreement or arrangement with any Third Party or under any obligation or restriction, including pursuant to its Certificate of Incorporation or Bylaws, which in any way limits or conflicts with its ability to fulfill any of its obligations under this Agreement, and that none of them shall enter into any such agreement, or so modify any existing agreement, during the term of this Agreement which would conflict with its ability to fulfill any of its obligations under this Agreement except the Syngenta Commitments. Syngenta represents and warrants as of the Effective Date that the Syngenta Commitments include accurate and complete descriptions of all of the agreements or other arrangements it has with Third Parties that limit or restrict its ability to fulfill any of its obligations under this Agreement.

(b)    Diversa represents and warrants that as of the Effective Date of this Agreement neither it nor any of its Affiliates is a Party to any agreement or arrangement with any Third Party or under any obligation or restriction, including pursuant to its Certificate of Incorporation or Bylaws, which in any way limits or conflicts with its ability to

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fulfill any of its obligations under this Agreement, and that none of them shall enter into any such agreement, or so modify any existing agreement during the term of this Agreement which would limit or conflict with its ability to fulfill any of its obligations under this Agreement, except the Diversa Commitments. Diversa represents and warrants as of the Effective Date that the Diversa Commitments include accurate and complete descriptions of all of the agreements or other arrangements it has with Third Parties and of its internally funded activities that limit or restrict its ability to conduct research and development activities for Syngenta in the Syngenta Exclusive Field.

9.3    Disclaimer of Warranties.  Diversa and Syngenta each specifically disclaims that the Research Program will be successful, in whole or part. DIVERSA AND SYNGENTA EXPRESSLY DISCLAIM ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE CONFIDENTIAL INFORMATION, PATENT RIGHTS OR KNOW-HOW, RESEARCH RESULTS, TECHNOLOGY, PROGRAM TECHNOLOGY, GENE(S), BIOMOLECULE(S), DIVERSA PRODUCTS, OR SYNGENTA PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR VALIDITY OF ANY TECHNOLOGY OR PROGRAM TECHNOLOGY, PATENTED OR UNPATENTED.

10.    CONFIDENTIALITY

10.1    Confidential Information.  Except as expressly provided herein, the Parties agree that, for the term of this Agreement and thereafter, the receiving Party (the “Receiving Party”) shall keep completely confidential and shall not publish or otherwise disclose and shall not use for any purpose except for the purposes contemplated by this Agreement the terms of this Agreement and any confidential information of the other Party or any data, technical and economic information (including the economic terms hereof), commercialization, and research strategies and know-how and other information provided by the other Party (the “Disclosing Party”) during the term of this Agreement or during the negotiation of this Agreement, the License Agreement, or the Transaction Agreement, or in connection with the transactions contemplated thereby, or any Research Results, Patent Rights, Know-How and Materials solely owned by the Disclosing Party (collectively, the “Confidential Information”) furnished to it by the Disclosing Party pursuant to this Agreement, the License Agreement, the Transaction Agreement, or the transactions contemplated thereby. The Parties acknowledge and agree that the foregoing restrictions shall not apply to any:

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(a)    information that is or becomes part of the public domain through no fault of the Receiving Party or its Affiliates;

(b)    information that is obtained after the date hereof by the Receiving Party or one of its Affiliates from any Third Party which is lawfully in possession of such Confidential Information and not in violation of any contractual or legal obligation to the Disclosing Party with respect to such Confidential Information;

(c)    information that is known to the Receiving Party or one or more of its Affiliates prior to disclosure by the Disclosing Party, as evidenced by the Receiving Party’s written records; or

(d)    information which has been independently developed by the Receiving Party without the aid or use of any Confidential Information, as shown by contemporaneous written records.

10.2    Permitted Disclosures.  Confidential Information may be disclosed to employees, agents, consultants and actual or bona fide potential Sublicensees of the Receiving Party or its Affiliates, but only to the extent reasonably required to accomplish the purposes of this Agreement and only if such employees, agents, consultants and actual or potential bona fide Sublicensees to whom disclosure is to be made are subject to a written obligation to hold in confidence and not make use of such information for any purpose other than those permitted by this Agreement. Each Party will use at least the same standard of care as it uses to protect proprietary or confidential information of its own to ensure that such employees, agents, consultants and Sublicensees do not disclose or make any unauthorized use of the Confidential Information. The Receiving Party shall be permitted to disclose Confidential Information in the event that, and only to the extent that, such information is required to be disclosed to comply with applicable laws or regulations or for regulatory filings to test, register and sell Syngenta Products and Diversa Products and any other products sold or licensed, or developed for sale or license, by Diversa or its Affiliates or Sublicensees which incorporate or are made through use of Program Technology as provided hereunder (such as disclosure to the United States Securities and Exchange Commission, the United States Environmental Protection Agency, the United States Department of Energy, the United States Food and Drug Administration, or the United States Patent and Trademark Office, or to their foreign equivalents), or to comply with a court or administrative order, provided that the Disclosing Party receives prior written notice of such disclosure and that the Receiving Party takes all reasonable and lawful actions to obtain confidential treatment for such disclosure and, if possible, to minimize the extent of such disclosure. In addition,

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each Party may disclose the terms of this Agreement to lenders, investment bankers, and similar financial institutions solely for purposes of financing the business operations of such Party and to Third Parties in connection with a potential bona fide merger or acquisition transaction either (i) upon the written consent of the other Party or (ii) if the disclosing Party obtains a signed confidentiality agreement with such financial institution or Third Party with respect to such information, upon terms substantially similar to those contained in this Section 10.

10.3    Publicity.  All publicity, press releases and other announcements relating to this Agreement or the transaction contemplated hereby shall be reviewed in advance by, and shall be subject to the approval of, both Parties; provided, however, that either Party may disclose the terms of this Agreement pursuant to Section 10.2 or to the extent required to comply with applicable securities or other laws, in which case the disclosing Party shall use reasonable efforts to provide the non-disclosing Party the opportunity to review and comment on such disclosure prior to its submission. Once a particular disclosure has been approved for disclosure, either Party may make disclosures which do not differ materially therefrom without any need for further consents. All such disclosures shall be copied to the other party for information.

10.4    Publication.  Neither Party shall publish any Research Results without the other Party’s prior written consent. If the Party not proposing disclosure gives such consent, the Parties shall cooperate in appropriate publication of the results of research and development work performed pursuant to this Agreement, but subject to the predominating interest to obtain patent protection for any patentable subject matter. To this end, it is agreed that prior to any public disclosure of such results, the Party proposing disclosure shall send the other Party a copy of the information to be disclosed, and shall allow the other Party thirty (30) days from the date of receipt in which to determine whether the information to be disclosed contains subject matter for which patent protection should be sought prior to disclosure, or otherwise contains Confidential Information of the reviewing Party which such Party desires to maintain as a trade secret. If such notification is not received during the thirty (30) day period, the Party proposing disclosure shall be free to proceed with the disclosure. If due to a valid business reason or a reasonable belief by the non-disclosing Party that the disclosure contains subject matter for which a patentable invention should be sought or Confidential Information of the non-disclosing party, then prior to the expiration of the thirty (30) day period, the non-disclosing Party shall so notify the disclosing Party, who shall then delete the Confidential Information of the non-disclosing Party and, at the request of the non-disclosing Party, delay public disclosure of the remainder of the disclosure for an

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additional period of up to sixty (60) days to permit the preparation and filing of a patent application on the subject matter to be disclosed or other action to be taken. The Party proposing disclosure shall thereafter be free to publish or disclose the information. The determination of authorship for any paper shall be in accordance with accepted scientific practice.

11.    INDEMNIFICATION

11.1    Syngenta.  Syngenta agrees to indemnify, defend and hold harmless Diversa and its Affiliates and Sublicensees and their respective employees, agents, officers, directors and permitted assigns (each a “Diversa Indemnitee”) from and against any claims, actions or suits by a Third Party resulting in any liabilities, damages, settlements, claims, penalties, fines, and reasonable costs or reasonable expenses incurred (including, without limitation, reasonable attorneys’ fees and other expenses of litigation, if any, of Third Parties awarded by the court in a final decision which is not appealed or is unappealable) (any of the foregoing, a “Claim”) against or incurred by any Diversa Indemnitee to the extent arising out of or resulting from (i) negligence or willful misconduct by Syngenta in the Research Program; (ii) a breach of any of the representations or warranties of Syngenta hereunder; (iii) a material breach of Syngenta’s obligations under this Agreement; (iv) the use of the Syngenta Proprietary Technology, Syngenta Materials and any other intellectual property or Materials which Syngenta provides for or uses in the conduct of the Research Program (excluding any intellectual property or Materials provided by Diversa or licensed by Diversa to Syngenta); and (v) the development or manufacture, use, promotion, marketing, sale or other distribution of any Syngenta Product by Syngenta or its Affiliates or Sublicensees, except, in each case, to the extent that such Claim arises out of or results from a matter for which Syngenta is entitled to be indemnified by Diversa pursuant to Section 11.2 hereof, and provided that notwithstanding the foregoing, Syngenta shall have no liability to any Diversa Indemnitee for its consequential or special damages or lost profits, and with respect to Third Party claims, shall only be obligated to indemnify Diversa Indemnitees against actual damages, if any, awarded to a Third Party or actual settlement amounts, as applicable. For the avoidance of doubt, any claims that Diversa may have with respect to the TMRI Intellectual Property Rights licensed under the License Agreement shall be made under the Transaction Agreement and not under or in connection with this Agreement.

11.2    Diversa.  Diversa agrees to indemnify, defend and hold harmless Syngenta and its Affiliates and Sublicensees and their respective employees, agents, officers, directors and permitted assigns (each a “Syngenta Indemnitee”) from and against any Claims against or incurred by any Syngenta Indemnitee arising out of or resulting from

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(i)  the negligence or willful misconduct of Diversa in the Research Program; (ii) a breach of any of the representations or warranties by Diversa hereunder; (iii) a material breach by Diversa of its obligations under this Agreement; (iv) to the extent not covered by Section 11.1 above, the use of Diversa Materials and any other intellectual property or Materials which Diversa provides for or uses in the conduct of the Research Program; and (v) the development or manufacture, use, promotion, marketing, sale or other distribution by Diversa or its Affiliates or its Sublicensees of any Diversa Product or any other product sold or licensed, or developed for sale or license, by Diversa or its Affiliates or Sublicensees which incorporates or is made through use of Program Technology, except, in each case, to the extent that such Claim arises out of or results from a matter as to which Diversa is entitled to be indemnified by Syngenta pursuant to Section 11.1 hereof; provided, however, that notwithstanding the foregoing, Diversa shall have no liability to any Syngenta Indemnitee for its consequential or special damages or lost profits and with respect to Third Party claims shall only be obligated to indemnify Syngenta Indemnitees against actual damages, if any, awarded to a Third Party or actual settlement amounts, as applicable.

11.3    Procedure.  A Diversa Indemnitee or Syngenta Indemnitee (the “Indemnitee”) that intends to claim indemnification under this Section 11 shall promptly notify the indemnifying Party (the “Indemnitor”) in writing of any Claim in respect of which the Indemnitee intend to claim such indemnification, and the Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, to assume the defense thereof with counsel chosen by Indemnitor, with consent of Indemnitee, which consent shall not be unreasonably withheld. The Indemnitee shall not enter into negotiations or enter into any agreement with respect to the settlement of any Claim without the prior written approval of the Indemnitor, and the indemnity agreement in this Section 11 shall not apply to amounts paid in settlement of any Claim if such settlement is made without the consent of the Indemnitor, which consent shall not be withheld unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Section 11. At the Indemnitor’s request, the Indemnitee under this Section 11, shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification and provide full information with respect thereto.

12.    TERM AND TERMINATION

12.1    Term and Termination of Research Program.  The initial five (5) year term of the Research Program shall commence on the Effective Date and, unless terminated

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earlier due to the termination of the Agreement pursuant to Section 12.3, 12.4 or 12.5, shall terminate on the fifth anniversary of the Effective Date. Syngenta shall have the right to extend the Research Term beyond the initial five (5) year term, from time to time, for consecutive periods of one Year by delivering written notice thereof to Diversa at least […***…] prior to the expiration of the initial five (5) year term or at least […***…] prior to the expiration of any extension period, and in any event the Research Term shall be extended so that funding of the Research Program during the Research Term shall comply with Section 2.6(b); provided, however, that Diversa’s express written consent shall be required for any such extension beyond the […***…] anniversary of the Effective Date. Diversa shall give Syngenta at least […***…] prior notice before the fifteenth or any subsequent anniversary of the Effective Date if it does not agree to the extension of the Research Term beyond the fifteenth or such subsequent anniversary date. If Diversa gives Syngenta this notice, Syngenta shall have no obligation to continue the Research Term or to provide any FTE Funding at any level beyond the fifteenth or such subsequent anniversary date of the Effective Date. The “Research Term” includes the initial five (5) year term and all extension periods pursuant to this Section 12.1 if applicable. The effective date of termination of the Research Term shall not be earlier than two Years after the expiration of the initial five year term, except as otherwise expressly provided under this Agreement.

12.2    Term and Termination of Agreement.  This Agreement shall be effective as of the Effective Date and, unless otherwise terminated earlier pursuant to the other provisions of this Section 12, shall continue in full force and effect on a country-by-country basis and Syngenta Product-by-Syngenta Product, or Diversa Product-by-Diversa Product basis, as the case may be, until the date that neither Party has remaining royalty obligations to the other for such Syngenta Product or Diversa Product, as applicable, in such country. Following the expiration of royalty obligations in any country with respect to a particular Syngenta Product or Diversa Product, as the case may be, Syngenta or Diversa shall retain a non-exclusive, perpetual, worldwide, fully paid license under the other Party’s interest in the Know-How within the Program Technology to commercialize such Syngenta Product or Diversa Product, as the case may be in the Syngenta Exclusive Field with respect to Syngenta and outside the Syngenta Exclusive Field with respect to Diversa.

12.3    Termination for Material Breach.  Either Party may terminate this Agreement in the event the other Party has materially breached or defaulted in the performance of any of its obligations hereunder and such default has continued for sixty (60) days (ten (10) days with respect to any payment default) after written notice thereof was provided to the breaching Party by the non-breaching Party, or if a cure of such default

*Confidential Treatment Requested

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(other than a payment default) cannot reasonably be effected within such sixty (60) day period, the defaulting Party has failed to deliver within such period a plan for curing such breach or default which is reasonably sufficient to effect a cure and which is satisfactory to the non-breaching party in its sole judgment. An assignment of this Agreement by a Party in contravention of Section 14.3 hereof shall be deemed to be a material breach which shall entitle the other Party to terminate this Agreement. It is understood and agreed that a Party may terminate this Agreement based upon the conduct of any Sublicensee of the other Party that would constitute a material breach of this Agreement if such other Party undertook such conduct, unless such other Party promptly and diligently acts (and continues to act) to enforce the restrictions and obligations set forth in this Agreement against such Sublicensee. Any termination shall become effective at the end of such cure period unless the breaching Party has cured any such breach or default prior to the expiration of the cure period, or has delivered to the other Party during such cure period a plan for curing such breach which is reasonably acceptable to the other Party.

12.4    Termination for Bankruptcy.  If voluntary or involuntary proceedings by or against a Party are instituted in bankruptcy under any insolvency law, or a receiver or custodian is appointed for such Party, or proceedings are instituted by or against such Party for corporate reorganization or the dissolution of such Party, which proceedings, if involuntary, shall not have been dismissed within sixty (60) days after the date of filing, or if such Party makes an assignment for the benefit of creditors, or substantially all of the assets of such Party are seized or attached and not released within sixty (60) days thereafter, the other Party may immediately terminate this Agreement effective upon notice of such termination.

12.5    Termination for Change in Control of Diversa.  In the event that during Research Term, Diversa proposes to undertake a Change in Control, Diversa will provide written notice thereof promptly upon such information being made publicly available. Syngenta shall have the right to terminate this Agreement if Diversa undergoes a Change in Control during such period if either (i) the Change of Control is with or involving any entity which is a competitor of Syngenta’s or its Affiliates, or (ii) as a result of such Change in Control, Syngenta reasonably determines, in its sole judgment, that such Change in Control would have an adverse effect on the ability of the surviving entity to perform the Research Program and provides Diversa the reason for this determination at the time of notice of such termination. In either case, Syngenta may terminate the Agreement effective upon such Change in Control by giving Diversa written notice of such prospective termination within

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thirty (30) days after Syngenta receives written notice of such proposed Change in Control from Diversa.

12.6    Effect of Termination.

(a)    Termination of this Agreement for any reason shall not release any Party hereto from any liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity which accrued or are based upon any event occurring prior to such termination.

(b)    Upon any termination of this Agreement, Syngenta and Diversa shall promptly return to the other Party hereto all Confidential Information received from the other Party (except one copy of which may be retained by legal counsel for archival purposes and ensuring compliance with Section 10), and all Materials shall be returned to the owner thereof, except to the extent either Party retains rights to use Know-How of the other Party pursuant to this Agreement and to the extent that Diversa retains rights under the License Agreement.

12.7    Survival.  Sections 1, 2.2(j) (ii)(but only for a period of five years after expiration or termination of this Agreement), 2.2(j)(iii), 2.6(f) (for the period described therein), 2.7, 3.5(a), 4.4(b), and 7.5 (for the period described therein), 8.1, 8.2, 8.3, 8.4, 8.6,8.7, 8.8, 8.9, 8.10, 9, 10, 11, 12.6, 12.7, 12.8, 13 and 14 of this Agreement shall survive the expiration or termination of this Agreement for any reason.

12.8    Rights in Bankruptcy.  All rights and licenses granted under or pursuant to this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. The Parties agree that each Party that is a licensee of such rights under this Agreement shall retain and may fully exercise its rights and elections under the U.S. Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against either Party under the U.S. Bankruptcy Code, the Party hereto which is not a Party to such proceeding shall be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, and same, if not already in their possession, shall be, within ten (10) days of the commencement of such proceeding, delivered to them (i) upon any such commencement of a bankruptcy proceeding upon their written request therefore, unless the Party subject to such proceeding (or a

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trustee on behalf of the subject Party) elects to continue to perform all of their obligations under this Agreement or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of the Party subject to such proceeding upon written request therefore by the non-subject Party.

13.      DISPUTE RESOLUTION

13.1    Acknowledgement.  Notwithstanding any other provision of this Agreement, it is understood and agreed that the matters as to which this Agreement provides that Syngenta or Syngenta’s representatives on the Research Committee have the right to make the decision shall not be subject to dispute resolution under this Section 13 including the following: the selection of which Projects, including without limitation, Reserved Projects, will be conducted in the Research Program which are within the Syngenta Exclusive Field (which decision shall be within Syngenta’s sole discretion); decisions to add, terminate, modify, reorder the priority or substitute Projects which are within the Syngenta Exclusive Field and the allocations of resources with respect thereto which will be made by the Syngenta representatives on the Research Committee under Section 2.2; and the amendment of Milestones and Milestone payments requiring Syngenta’s agreement and the determination by Syngenta whether Milestones have been achieved under Section 5.1. In addition, any dispute regarding ownership of any Research Results, Patent Rights and Know-How shall be resolved in accordance with Section 8.3 and shall not be subject to dispute resolution under this Section 13.

13.2    Consultation.  If an unresolved dispute arises out of or relates to this Agreement, or the breach thereof, either Party may refer such dispute to the Chief Executive Officer of Diversa and Syngenta’s Head of Plant Science (or equivalent position) or his or her nominee (who shall not be a member of the Research Committee) for good faith resolution. If such dispute is not settled within […***…] of such referral, then either Party may thereafter initiate arbitration in accordance with Section 13.3.

13.3    Arbitration.

(a)    Except as otherwise provided in this Agreement, including Section 13.1 or 13.3(e), any dispute, controversy or claim arising out of the performance of this Agreement, including termination thereof, or any alleged breach thereof which is not settled by mutual consent pursuant to Section 13.2 above, shall be finally settled by binding arbitration as set forth in Sections 13.3(b) or 13.3(c) below. Any arbitration award may be

*Confidential Treatment Requested

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entered in a court of competent jurisdiction for a judicial recognition of the decision and an order of enforcement.

(b)    Except as otherwise provided in Section 13.3(c) below, arbitration of any dispute, controversy or claim shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association by three (3) independent, neutral arbitrators appointed in accordance with said rules. Any arbitration shall be held in New York, New York. The arbitrators shall determine what discovery shall be permitted, consistent with the goal of limiting the cost and time which the Parties must expend for discovery; provided the arbitrators shall permit such discovery as they deem necessary to permit an equitable resolution of the dispute. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or a true copy thereof. Except as otherwise expressly provided in this Agreement, the costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the parties and each Party shall bear its own costs and attorneys’ and witness’ fees incurred in connection with the arbitration. A disputed performance or suspended performances pending the resolution of the arbitration must be completed within a reasonable time period following the final decision of the arbitrators. The arbitrators shall be directed that any arbitration subject to this Section 13.4(b) shall be completed within one (1) year from the filing of notice of a request for such arbitration. The arbitration proceedings and the decision shall not be made public without the joint consent of the Parties and each Party shall maintain the confidentiality of such proceedings and decision unless otherwise permitted by the other Party. Any decision which requires a monetary payment shall require such payment to be payable in United States dollars, free of any tax or other deduction. The Parties agree that the decision shall be the sole, exclusive and binding remedy between them regarding any and all disputes, controversies, claims and counterclaims presented to the arbitrators.

(c)    If the Parties do not agree upon (i) the adjustment of Revenue with respect to a Product as provided under Section 6.3 or (ii) the financial value of non-financial consideration pursuant to Section 6.4, then such matters shall be determined by binding arbitration pursuant to this Section 13.3 (c) by one (1) independent, neutral arbitrator that is mutually acceptable to the Parties and who is an expert in the appropriate industry (e.g., agriculture, pharmaceuticals, etc.) to which the applicable Products or non-financial consideration, as the case may be, relate. If the Parties are unable to agree upon a mutually acceptable arbitrator, the arbitrator shall be an independent expert as described in the preceding sentence selected by the chief executive of the office of the American Arbitration

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Association encompassing New York, New York. For arbitration of disputes subject to this Section 13.3(c) each Party to the arbitration shall prepare and submit one written proposal setting forth its proposed allocation of Revenue or its proposed financial valuation of non-financial consideration, all expressed in U.S. Dollars) for the commercialization at issue, together with a written explanation setting forth the reasons for its position. After the arbitrator has received proposals from both Syngenta and Diversa, the arbitrator shall forward a copy of the other Party’s proposal to each. No oral presentations shall be permitted. The arbitrator shall select the proposal of one of the Parties as his decision, and shall not have the authority to render any substantive decision other than to so select in its entirety the proposal of one Party or the other. Except as otherwise expressly provided in this Agreement, the costs of the arbitration, including administrative and arbitrator’s fees, shall be shared equally by the Parties and each Party shall bear its own costs and attorneys’ fees incurred in connection with the arbitration. A disputed performance or suspended performances pending the resolution of the arbitration must be completed within a reasonable time period following the final decision of the arbitrator. The arbitrator shall be directed that any arbitration subject to this Section 13.3 (c) shall be completed within four (4) months from the filing of notice of a request for such arbitration. The arbitration proceedings and the decision shall not be made public without the joint consent of the Parties and each Party shall maintain the confidentiality of such proceedings and decision unless otherwise permitted by the other Party. Any decision which requires a monetary payment shall require such payment to be payable in United States dollars, free of any tax or other deduction. The Parties agree that the decision shall be the sole, exclusive and binding remedy between them regarding determination of the matters presented to the arbitrator.

(d)    The arbitrator or arbitrators shall, within fifteen (15) calendar days after the conclusion of the arbitration hearing pursuant to Section 13.3(b) or (c), issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator or arbitrators shall be authorized to award compensatory damages, but shall NOT be authorized (i) to award non-economic damages, such as for emotional distress, pain and suffering or loss of consortium, (ii) to award punitive damages, or (iii) to reform, modify or materially change this Agreement or any other agreements contemplated hereunder; provided, however, that the damage limitations described in parts (i) and (ii) of this sentence will not apply if such damages are statutorily imposed. The arbitrator or arbitrators also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief the arbitrator or arbitrators deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. Judgment on

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the award rendered by the arbitrator or arbitrators may be entered in any court having competent jurisdiction thereof.

(e)    This Section 13 shall not apply to any dispute, controversy or claim that concerns (a) the validity or infringement of a patent, trademark or copyright; or (b) any antitrust, anti-monopoly or competition law or regulation, whether or not statutory.

(f)    By agreeing to this binding arbitration provision, the Parties understand that they are waiving certain rights and protections which may otherwise be available if a claims between the Parties were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this provision, the right to a jury trial, certain rights of appeal, and a right to invoke formal rules of procedure and evidence.

14.    MISCELLANEOUS

14.1    Governing Law.  This Agreement and any dispute arising from the performance or any breach hereof, including without limitation, any arbitration, shall be governed by and construed in accordance with the laws of the State of New York, without reference to conflicts of laws principles.

14.2    Waiver.  No failure on the part of Syngenta or Diversa to exercise and no delay in exercising any right under this Agreement, or provided by statute or at law or in equity or otherwise, shall impair, prejudice or constitute a waiver of any such right, nor shall any partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right, including without limitation any right under this Agreement or under common law, in equity, by statute, or otherwise.

14.3    Assignment. This Agreement shall not be assignable by either Party to any Third Party hereto without the written consent of the other Party hereto; except either Party may assign this Agreement, without such consent, to an Affiliate of such Party; and except that, subject to Section 12.5, either Party may assign this Agreement to an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise; provided, however, that, in the event of such merger, reorganization, acquisition, sale or other transaction, no intellectual property of any acquiring entity that is not a Party on the Effective Date shall be included in the technology and intellectual property licensed hereunder. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the Parties.

60

14.4    Notices. All notices, requests and other communications hereunder shall be in writing and shall be personally delivered or sent by internationally recognized express delivery service, registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below, or such other address as may be specified in writing to the other Parties hereto:

If to Syngenta:

Syngenta Participations AG

Schwarzwaldallee 215

CH-4002

Basel, Switzerland

Attention: President

Fax: 41 61 323 7571

With a copy to:

Syngenta International AG

Schwarzwaldallee 215

CH-4002

Basel, Switzerland

Attention: General Counsel

Fax: : 41 61 323 7571

And with a copy to:

Syngenta International AG

Schwarzwaldallee 215

CH-4002

Basel, Switzerland

Attention: Head of Mergers, Acquisitions, Ventures and Licensing

Fax: 41 61 323 5568

If to Diversa:

Diversa Corporation

4955 Directors Place

San Diego, California

92121-1609

Attention: President

Fax: (858) 526-5160

61

With a copy to:

Diversa Corporation

4955 Directors Place

San Diego, California

92121-1609

Attention: Vice President, Intellectual Property

Fax: (858) 526-5604

With a copy to:

Cooley Godward LLP

4401 Eastgate Mall

San Diego, California

92121-1909

Attention: L. Kay Chandler, Esq.

Fax: (858) 550-6420

Each Party providing notice, shall as a matter of courtesy, use reasonable efforts to transmit an electronic or facsimile copy of any such notice, but a failure to do so shall not constitute a failure to provide notice or a breach of this Agreement. All notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.

14.5    Force Majeure.  Neither Party shall be liable to the other for failure or delay in the performance of any of its obligations under this Agreement (other than failure to make any payment when due) for the time and to the extent such failure or delay is caused by earthquake, riot, civil commotion, war, hostilities between nations, governmental law, order or regulation, embargo, action by the government or any agency thereof, act of God, storm, fire, accident, labor dispute or strike, sabotage, explosion or other similar or different contingencies, in each case, beyond the reasonable control of the respective Party. The Party affected by Force Majeure shall provide the other Party with full particulars thereof as soon as it becomes aware of the same (including its best estimate of the likely extent and duration of the interference with its activities), and will use its best endeavors to overcome the difficulties created thereby and to resume performance of its obligations as soon as practicable. If the performance of any obligation under this Agreement is delayed owing to a force majeure for any continuous period of more than six (6) months, the Parties hereto shall consult with respect to an equitable solution, including the possible termination of this Agreement.

62

14.6    Independent Contractors.  Both Parties hereto are independent contractors and are engaged in the operation of their own respective businesses, and neither Party hereto is to be considered the agent or partner of the other Party for any purpose whatsoever. Neither Party has any authority to enter into any contracts or assume any obligations for the other Party or make any warranties or representations on behalf of the other Party.

14.7    Advice of Counsel.  Diversa and Syngenta have each consulted counsel of their choice regarding this Agreement, and each acknowledges and agrees that this Agreement shall not be deemed to have been drafted by one Party or another and will be construed accordingly.

14.8    Severability.  In the event that any provisions of this Agreement are determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect without said provision. The Parties shall in good faith negotiate a substitute clause for any provision declared invalid or unenforceable, which shall most nearly approximate the intent of the Parties in entering this Agreement; provided, if the Parties are unable to agree on such a substitute clause and the deletion of the provision held invalid or unenforceable would produce material adverse financial consequences for one Party, such Party shall have the right to terminate the Agreement with one hundred eighty (180) days notice.

14.9    Compliance with Laws.  Each Party shall furnish to the other Party any information reasonably requested or required by that Party during the term of this Agreement or any extensions hereof to enable that Party to comply with the requirements of any U.S. or foreign federal, state and/or government agency. Each Party shall comply with all applicable U.S., foreign, state, regional and local laws, rules and regulations relating to its activities to be performed pursuant to this Agreement

14.10    Entire Agreement.  This Agreement, the Exhibits hereto, and the Transaction Documents (as defined in the Transaction Agreement), constitute the entire agreement, both written or oral, with respect to the subject matter hereof and thereof, and supersede all prior or contemporaneous understandings or agreements, whether written or oral, between Diversa and Syngenta with respect to such subject matter.

14.11    Headings.  The captions to the several Sections and Subsections hereof are not a part of this Agreement, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.

63

14.12    Binding Effect.  This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns.

14.13    Counterparts.  This Agreement may be executed in two counterparts, each of which shall be deemed an original and which together shall constitute one instrument.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their authorized representatives as of the Effective Date.

SYNGENTA PARTICIPATIONS AG		DIVERSA CORPORATION
By:	/s/ Adrian C. Dubock	By:	/s/ Jay M. Short
Name:	Adrian C. Dubock	Name:	Jay M. Short
Title:	Head: Mergers & Acquisitions,	Title:	CEO
	Ventures and Licensing
By:	/s/ Marian T. Flattery
Name:	Marian T. Flattery
Title:	Head of Global Intellectual Property

64

EXHIBIT A

PLATFORM TECHNOLOGY PATENT APPLICATIONS

Country/Patent Office	Syngenta Filing Ref.	Application No.	Application Date	Earliest Priority	Status	Publication No	Title
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]			[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]		[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]			[…***…]	[…***…]		[…***…]

*Confidential Treatment Requested

65

Country/Patent Office	Syngenta Filing Ref.	Application No.	Application Date	Earliest Priority	Status	Publication No	Title
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]

*Confidential Treatment Requested

66

Country/Patent Office	Syngenta Filing Ref.	Application No.	Application Date	Earliest Priority	Status	Publication No	Title
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]

*Confidential Treatment Requested

67

Country/Patent Office	Syngenta Filing Ref.	Application No.	Application Date	Earliest Priority	Status	Publication No	Title
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]

*Confidential Treatment Requested

68

Country/Patent Office	Syngenta Filing Ref.	Application No.	Application Date	Earliest Priority	Status	Publication No	Title
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]
[…***…]	[…***…]	[…***…]	[…***…]	[…***…]	[…***…]		[…***…]

*Confidential Treatment Requested

69

EXHIBIT B

PROJECT LIST AS OF EFFECTIVE DATE

[…***…]

*Confidential Treatment Requested

70

[…***…]

*Confidential Treatment Requested

71

[…***…]

*Confidential Treatment Requested

72

[…***…]

*Confidential Treatment Requested

73

[…***…]

*Confidential Treatment Requested

74

[…***…]

*Confidential Treatment Requested

75

[…***…]

*Confidential Treatment Requested

76

[…***…]

*Confidential Treatment Requested

77

[…***…]

*Confidential Treatment Requested

78

[…***…]

*Confidential Treatment Requested

79

EXHIBIT C

PATENT STRATEGY COOPERATION PROCEDURES

[…***…]

*Confidential Treatment Requested

80

[…***…]

*Confidential Treatment Requested

81

EX-10.47

Exhibit 10.47

INTELLECTUAL PROPERTY RIGHTS LICENSE

THIS LICENSE AGREEMENT is made as of this 3^rd day of December, 2002 by and between Syngenta Participations AG, a corporation organized under the laws of Switzerland (“SPARTAG”), and Diversa Corporation, a Delaware corporation (“DIVERSA”) and will be effective as of the closing of the transactions contemplated by the Transaction Agreement (as defined below) (the “License Effective Date”). Each of SPARTAG and DIVERSA are referred to herein as a “Party” and together as the “Parties.”

W I T N E S S E T H:

WHEREAS, SPARTAG, Torrey Mesa Research Institute (“TMRI Corp.”, and together with SPARTAG, “the Syngenta Parties”) and DIVERSA have entered into a Transaction Agreement (the “Transaction Agreement”) dated as of December 3, 2002 pursuant to which the Syngenta Parties have agreed to sell and transfer certain assets and properties owned, held or used in the conduct of TMRI (as defined in the Transaction Agreement) to DIVERSA, and DIVERSA has agreed to purchase these assets and properties from the Syngenta Parties; and

WHEREAS, the Syngenta Parties and DIVERSA have agreed to enter into several other Transaction Documents (as defined in the Transaction Agreement) that will become effective at the closing under the Transaction Agreement, including, without limitation, the Collaboration Agreement (as defined in the Transaction Agreement) and this Intellectual Property License Agreement providing for the grant and delivery by SPARTAG to DIVERSA of licenses to certain TMRI Intellectual Property Rights;

NOW THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, SPARTAG and DIVERSA, intending to be legally bound, hereby agree as follows:

1.    Definitions

In addition to the other terms defined below, the following terms used in this Agreement shall have the following meanings:

“Affiliate” has the meaning set forth in Section 1.1 of the Collaboration Agreement.

“Control”, “Controls”, or “Controlled” has the meaning set forth in Section 1.6 of the Collaboration Agreement.

“Intellectual Property Right” has the meaning set forth in Section 1.01 of the Transaction Agreement.

“Patent” has the meaning set forth in Section 1.01 of the Transaction Agreement.

“Person” has the meaning set forth in Section 1.01 of the Transaction Agreement.

“Plant” has the meaning set forth in Section 1.25 of the Collaboration Agreement.

1.

“Plant Health Technology” means the tools, technologies and methods which are not publicly available and are proprietary to or Controlled by Syngenta or its Affiliates immediately prior to the closing of the transactions under the Transaction Agreement, as practiced in the fungal program conducted by the pathogen research team of TMRI Corp., and which are claimed or disclosed within the scope of the TMRI Intellectual Property Rights listed in Schedule 3.10(a)-1 or Schedule 3.10(a)-2 of the Transaction Agreement.

“Platform Technology” has the meaning set forth in Section 1.27 of the Collaboration Agreement.

“Syngenta Exclusive Field” has the meaning set forth in Section 1.46 of the Collaboration Agreement.

“Third Party” has the meaning set forth in Section 1.50 of the Collaboration Agreement.

“TMRI Intellectual Property Rights” has the meaning set forth in Section 1.01 of the Transaction Agreement; provided that, for purposes of this Agreement, the term “TMRI Intellectual Property Rights” shall not include any trademark, service mark, trade name or domain name.

2.  Grants of Rights by SPARTAG to DIVERSA

2.1.  Platform Technology.    Subject to Section 2.3 below, SPARTAG hereby grants and delivers to DIVERSA an exclusive, perpetual, irrevocable, royalty-free license in and to TMRI Intellectual Property Rights claimed, disclosed, covered or included in the Platform Technology, including, without limitation, the Patents listed on Schedules 3.10(a)-1 and 3.10(a)-2 of the Transaction Agreement which relate to the Platform Technology, in each case solely for uses outside the Syngenta Exclusive Field, which license shall be effective as of the License Effective Date.

2.2  Plant Health Technology.    Subject to DIVERSA’s hiring of at least two senior employees from TMRI Corp.’s pathogen research team and subject to Section 2.3 below, SPARTAG hereby grants and delivers to DIVERSA an exclusive, perpetual, irrevocable, royalty-free license in and to TMRI Intellectual Property Rights claimed, disclosed, covered or included in the Plant Health Technology, including, without limitation, the Patents listed on Schedules 3.10(a)-1 and 3.10(a)-2 of the Transaction Agreement which relate to the Plant Health Technology, in each case solely for uses outside the Syngenta Exclusive Field, which license shall be effective as of the License Effective Date. In this event, SPARTAG will make reasonable attempts to extract specific data sets with reference to antifungal activity from the TMRI Corp. genomics database for inclusion in the license granted pursuant to this Section 2.2 for use by DIVERSA outside the Syngenta Exclusive Field, including, without limitation, use by DIVERSA in the invention of human anti-infective pharmaceutical drug candidates and drugs. In addition, upon the grant of the license under this Section 2.2, SPARTAG will deliver to DIVERSA all fungal strains and other tangible materials included in the Plant Health Technology.

2.3  Terms of Licenses.    The licenses set forth in Sections 2.1 and 2.2 above shall be exclusive for all applications outside the Syngenta Exclusive Field, including during and after the term of the Collaboration Agreement, and such licenses will survive termination of the Collaboration Agreement.

2.

2.4  Sublicenses.    DIVERSA shall have the right to grant sub-licenses under the licenses granted by SPARTAG to DIVERSA in Sections 2.1 and 2.2 only to (a) any spin-out companies of DIVERSA, and/or (b) to any Affiliate of DIVERSA or Third Party to whom DIVERSA assigns, licenses or other transfers all or substantially all of any business of DIVERSA which uses the TMRI Intellectual Property Rights licensed pursuant to this Agreement, in either such case for the same purposes and on the same terms as set forth in Sections 2.1 and 2.2 and provided that (i) any such sublicensee to whom a sublicense is granted agrees to be bound by the terms and conditions of this Agreement and (ii) DIVERSA will be responsible for the observance by all such sublicensees of all applicable provisions of this Agreement, and will use its reasonable good faith efforts to cause all of such sublicensees to observe the covenants in this Agreement.

3.  Warranties and Representations

In addition to the representations and warranties regarding the TMRI Intellectual Property Rights included in the Transaction Agreement, SPARTAG represents and warrants that (a) it has the right to grant the licenses granted and deliver the materials specified in Section 2 of this Agreement, (b) it has not assigned, licensed or otherwise granted to any Person, except as expressly provided in this Agreement or the Transaction Agreement, any right or interest in any TMRI Intellectual Property Right, (c) it has not, and will not, grant any right to any Person which would conflict with the licenses granted to DIVERSA under this Agreement, (d) it has maintained and will maintain and keep in full force and effect all agreements (including license agreements) and filings (including Patent filings) necessary to perform its obligations under this Agreement, and (e) subject to any exclusions disclosed on Schedules 3.09(c), 3.10(a)-1, 3.10(a)-2, 3.10(a)-4, 3.10(a)-5, 3.10(c), and Schedule 3.10(d) of the Transaction Agreement, to its knowledge as of the License Effective Date, there is no Third Party intellectual property which DIVERSA would be required to license or acquire in order to practice the TMRI Intellectual Property Rights.

4.  Prosecution, Maintenance and Defense of Intellectual Property

4.1  By SPARTAG.    SPARTAG shall, at its sole discretion and expense, prosecute, maintain and defend or have prosecuted, maintained and defended the TMRI Intellectual Property Rights; provided, however, that SPARTAG shall use commercially reasonable efforts to prosecute, maintain and defend or have prosecuted, maintained and defended the TMRI Intellectual Property Rights pursuant to this Section 4.1 in a manner so that, for the duration of the TMRI Intellectual Property Rights, the scope of the TMRI Intellectual Property Rights remains comparable to the scope of the TMRI Intellectual Property Rights as they exist as of the License Effective Date. SPARTAG agrees to keep DIVERSA reasonably informed of prosecution, maintenance and defense of the TMRI Intellectual Property, including, without limitation, providing notice and information regarding substantive amendments to claims, response to final rejections and notices of allowance, filing decisions in the United States as well as foreign patent offices, oppositions, revocations, re-examination or other substantive prosecution matters with respect to the TMRI Intellectual Property Rights.

4.2.  DIVERSA Rights.    Subject to SPARTAG’s obligations under Section 4.1, if SPARTAG elects not to continue to prosecute any patent applications or to maintain any patents within the TMRI Intellectual Property Rights licensed to DIVERSA under Section 2 of this

3.

Agreement in any country, on a country-by-country basis, SPARTAG shall promptly notify DIVERSA in writing and DIVERSA shall have the right, but not the obligation, to assume the responsibility for the prosecution of any such patent applications and maintenance of any such patents at DIVERSA’s expense. If, following such SPARTAG election, DIVERSA elects to continue to prosecute any such patent applications or to maintain any such patents, SPARTAG shall assign such patent applications and patents to DIVERSA, and shall execute all documents necessary to effect such assignment, and DIVERSA shall grant back to SPARTAG and its Affiliates the licenses specified to be granted by Diversa to SPARTAG under the Collaboration Agreement on the terms specified therein and a non-exclusive, royalty-bearing license for the Syngenta Exclusive Field under any other applicable patent application or patent at a royalty rate to be negotiated by the Parties.

4.3  Enforcement.    Enforcement of any of the TMRI Intellectual Property Rights against any actual or threatened infringement shall be subject to the terms set forth in Section 8.7 of the Collaboration Agreement, which is incorporated herein by reference.

4.4  Third Party Infringement.    The Parties shall promptly notify one another in writing of any allegation by a Third Party that the exercise of the rights granted to Diversa under this Agreement or the activities of either Party under this Agreement infringes or may infringe the intellectual property rights of such Third Party. Each Party will use commercially reasonable efforts (and will endeavor to cause its Affiliates to use commercially reasonable efforts) to cooperate with the other Party to resolve or defend against any such claims. Neither Party shall have the right to settle any patent infringement litigation under this Section 4.4 in a manner that diminishes the rights of the other Party without the prior written consent of such other Party.

5.  Miscellaneous

5.1.  Duration and Termination.    This Agreement shall commence on the Effective Date and shall continue in force in perpetuity.

5.2.  Assignability.    Neither this Agreement nor any rights or obligations hereunder may be assigned by any Party without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement or any rights or obligations hereunder (with notice to, but without the prior written consent of, the other Party) to (a) an Affiliate or (b) a person who acquires all or substantially all of the assets of the business of that Party to which this Agreement relates, or all of the assets of that Party, or any part of the assets of that Party which includes the assets of the business of that Party to which this Agreement relates; provided that any such assignee agrees to be bound by the terms and conditions of this Agreement.

5.3.  Entire Agreement.    This Agreement, the Transaction Agreement and the other Transaction Documents, including but not limited to the Collaboration Agreement, constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersede all prior agreements and understandings, both oral and written, with respect to the subject matter of this Agreement. No modification, extension or release from any provision hereof shall be effected by mutual agreement, acknowledgment, acceptance or purchase order, invoice or shipping instructions forms, or otherwise, unless the same shall be in writing, signed by the Party to be bound and specifically described as an amendment or extension of this Agreement. In the event of any conflict between the provisions of this Agreement and the Transaction Agreement or the Collaboration Agreement, the applicable provisions of the

4.

Transaction Agreement or the Collaboration Agreement, respectively, shall control unless otherwise expressly set forth herein.

5.4.  Governing Law.    This Agreement shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law rules of such state.

5.5.  Successors and Assigns.    The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

5.6.  Party Relationship.    In the performance of this Agreement, each of DIVERSA and SPARTAG is engaged in an independent business as an independent contractor, and nothing herein shall be construed to the contrary. Nothing in this Agreement shall make a Party the partner, agent or representative of the other Party except as required by law. Except as expressly contemplated herein, neither Party shall assume or create any obligations or responsibility, express or implied, on behalf of or in the name of the other Party, or bind the other Party in any manner or thing whatsoever.

5.7.  Notices.    All notices, requests and other communications hereunder shall be in writing and shall be personally delivered or sent by internationally recognized express delivery service, registered or certified mail, return receipt requested, postage prepaid, in each case to the respective address specified below, or such other address as may be specified in writing to the other Parties hereto:

If to SPARTAG:

Syngenta Participations AG

Schwarzwaldallee 215

CH-4002

Basel, Switzerland

Attention: President

Fax: 41 61 323 7571

With a copy to:

Syngenta International AG

Schwarzwaldallee 215

CH-4002

Basel, Switzerland

Attention: General Counsel

Fax: : 41 61 323 7571

And with a copy to:

Syngenta International AG

Schwarzwaldallee 215

CH-4002

Basel, Switzerland

Attention: Head of Mergers, Acquisitions, Ventures and Licensing

5.

Fax: 41 61 323 5568

If to Diversa:

Diversa Corporation

4955 Directors Place

San Diego, California 92121-1609

Attention: Senior Director, Corporate Development and Compliance

Fax: (858) 526-5666

With a copy to:

Diversa Corporation

4955 Directors Place

San Diego, California 92121-1609

Attention: Vice President, Intellectual Property

Fax: (858) 526-5604

With a copy to:

Cooley Godward LLP

4401 Eastgate Mall

San Diego, California 92121

Attention: L. Kay Chandler, Esq.

Fax: (858) 550-6420

Each Party providing notice, shall as a matter of courtesy, use reasonable efforts to transmit an electronic or facsimile copy of any such notice, but a failure to do so shall not constitute a failure to provide notice or a breach of this Agreement. All notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00p.m. in the place of receipt and such is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.

5.8.  Headings.    The headings and titles of this Agreement are inserted for convenience only and shall not be deemed a part hereof or effect the construction or interpretation of any provision hereof.

5.9.  Counterparts.    This Agreement may be signed in any number of counterparts and by the different Parties on separate counterparts, each of which shall be an original with the same effect as if the signatures hereto and thereto were upon the same instrument.

5.10  Confidentiality.    The Parties acknowledge and agree that all TMRI Intellectual Property shall be Confidential Information of both Parties and shall be subject to the provisions of Sections 10.1 and 10.2 of the Collaboration Agreement, which are incorporated herein by

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reference; provided that such provisions shall remain in effect with respect to this Agreement for so long as this Agreement remains in effect.

5.11  Indemnification.

(a)  SPARTAG agrees to indemnify, defend and hold harmless DIVERSA and its Affiliates and sublicensees and their respective employees, agents, officers, directors and permitted assigns (each a “DIVERSA Indemnitee”) from and against any claims, actions or suits by a Third Party resulting in any liabilities, damages, settlements, claims, penalties, fines, and reasonable costs or reasonable expenses incurred (including, without limitation, reasonable attorneys’ fees and other expenses of litigation awarded by the court in a final decision which is not appealed or is unappealable) (any of the foregoing, a “Claim”) against or incurred by any DIVERSA Indemnitee to the extent arising out of or resulting from (i) the practice of the TMRI Intellectual Property rights by SPARTAG or any of its Affiliates or licensees in the Syngenta Exclusive Field, or (ii) a material breach of any of the representations or warranties of SPARTAG hereunder, except, in each case, to the extent that such Claim arises out of or results from a matter for which SPARTAG is entitled to be indemnified by DIVERSA pursuant to Section 5.11(b) hereof or the negligence or willful misconduct of DIVERSA; provided, however, that notwithstanding the foregoing, SPARTAG shall have no liability to any DIVERSA Indemnitee for its consequential or special damages or lost profits, and with respect to Third Party claims, shall only be obligated to indemnify DIVERSA Indemnitees against actual damages, if any, awarded to a Third Party or actual settlement amounts, as applicable, except as specifically provided in this Section 5.11(a).

(b)  DIVERSA agrees to indemnify, defend and hold harmless SPARTAG and its Affiliates and licensees and their respective employees, agents, officers, directors and permitted assigns (each a “SPARTAG Indemnitee”) from and against any Claims against or incurred by any SPARTAG Indemnitee arising out of or resulting from (i) the practice of the TMRI Intellectual Property rights by DIVERSA or any of its permitted sublicensees outside the Syngenta Exclusive Field, or (ii) a material breach of any of the representations or warranties by DIVERSA hereunder, except, in each case, to the extent that such Claim arises out of or results from a matter as to which DIVERSA is entitled to be indemnified by SPARTAG pursuant to Section 5.11(a) hereof or the negligence or willful misconduct of SPARTAG; provided, however, that notwithstanding the foregoing, DIVERSA shall have no liability to any SPARTAG Indemnitee for its consequential or special damages or lost profits and with respect to Third Party claims shall only be obligated to indemnify SPARTAG Indemnitees against actual damages, if any, awarded to a Third Party or actual settlement amounts, as applicable, except as specifically provided in this Section 5.11(b).

(c)  A DIVERSA Indemnitee or SPARTAG Indemnitee (the “Indemnitee”) that intends to claim indemnification under this Section 5.11 shall promptly notify the indemnifying Party (the “Indemnitor”) in writing of any Claim in respect of which the Indemnitee intend to claim such indemnification, and the Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, to assume the defense thereof with counsel chosen by Indemnitor, with consent of Indemnitee, which consent shall not be unreasonably withheld. The Indemnitee shall not enter into negotiations or enter into any agreement with respect to the settlement of any Claim without the prior written approval of the

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Indemnitor, and the indemnity agreement in this Section 5.11 shall not apply to amounts paid in settlement of any Claim if such settlement is made without the consent of the Indemnitor, which consent shall not be withheld unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Section 5.11. At the Indemnitor’s request, the Indemnitee under this Section 5.11, shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or liability covered by this indemnification and provide full information with respect thereto.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their authorized representatives as of the Effective Date.

SYNGENTA PARTICIPATIONS AG		DIVERSA CORPORATION
By:	/s/    Adrian C. Dubock	By:	/s/ Jay M. Short
Name:	Adrian C. Dubock	Name:	Jay M. Short
Title:	Head: Mergers & Acquisitions, Ventures and Licensing	Title:	CEO

By:	/s/ Marian T. Flattery
Name:	Marian T. Flattery
Title:	Head of Global Intellectual Property

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